ORDER

SARAH S. VANCE, District Judge.

Before the Court are plaintiff Lawrence Halloran's objections1 to the Magistrate's Findings and Recommendation2 ("F & R") denying plaintiff's Motion for Summary Judgment. Having reviewed de novo the record, the Magistrate's F & R, the plaintiff's objections thereto, and the applicable law, the Court agrees with the Magistrate's recommendation and adopts the F & R as its opinion. The Court rejects plaintiff's objections to the F & R for the following reasons.

Halloran contends that the Magistrate came to the "incorrect legal conclusion that 20 C.F.R. § 416.994(b)(2)(iv)(E) does not require a finding that disability continues when the Social Security Administration ("SSA") lost a prior file, did not reconstruct that file, and no exception to the medical improvement standard applies."3 He makes five arguments in support of this objection; the Court will address each in turn.

I. The F & R's interpretation of § 416.994 is not contrary to the plain language of the regulation.

Halloran first contends that the plain language of § 416.994 compels a finding that he is entitled to continuing disability payments.

Halloran is correct that 20 C.F.R. § 416.994(b)(2)(iv)(E) precludes a finding of medical improvement when the file upon which the claimant's most recent favorable determination of benefits was based cannot be found and is not reconstructed. Moreover, two provisions of § 416.994 indicate that if (1) a claimant has not medically improved and (2) an exception to medical improvement does not apply, the claimant will continue to receive benefits. See 20 C.F.R. § 416.994(b) ("If medical improvement related to your ability to work has not occurred and no exception applies, your benefits will continue."); 20 C.F.R. § 416.994(b)(5)(iv) ("If we f[ind] ... that there has been no medical improvement... we consider whether any of the [medical improvement exceptions] apply. If none of them apply, your disability will be found to continue."). Thus, Halloran asserts, because no exceptions to medical improvement apply to his case, and because medical improvement may not be found under § 416.994(b)(2)(iv)(E), his disability payments must continue.

The flaw in Halloran's argument is this: while § 416.994(b)(2)(iv)(E) precludes a finding of medical improvement if the lost file is not reconstructed, that provision does not compel a finding of no medical improvement if the lost file is not reconstructed. See 20 C.F.R. § 416.994(b)(2)(iv)(E) ("If relevant parts of the prior record are not reconstructed... medical improvement cannot be found."). Nor does the regulation say that the claimant is deemed disabled if the file is not reconstructed. The ALJ, having determined that medical improvement could not be found because of the absence of the prior record, was no longer able to follow the sequential procedure set forth in § 416.994(b)(5) to determine whether Halloran's benefits should be continued. The ALJ could not say that there had been medical improvement, but neither could he say that there had been no medical improvement. Accordingly, as the Magistrate recognized,4 the ALJ could not proceed beyond Step 2 of the eight-step process in § 416.994(b)(5). See 20 C.F.R. § 416.994(b)(5)(ii) (directing the agency to proceed to Step 3 if there has been medical improvement and to proceed to Step 4 if there has been no medical improvement).

Halloran points out that, "[a]bsent a finding of [medical improvement], the ... evaluation cannot proceed to Steps 5-7."5 But it is equally true that absent a determination that medical improvement has not occurred, the evaluation cannot proceed to Step 4. And, contrary to Halloran's assertion, the Magistrate's interpretation of the regulation does not "require[] ignoring the final two sentences of § 416. 994(b)(2)(iv)(E)."6 Future reviews and reopenings can still occur for a claimant whose file is lost if, for example, the claimant is found to be unable to engage in substantial gainful activity and so still eligible for disability benefits.

In sum, because the Court does not find Halloran's arguments convincing, and because his suggested reading would lead to an absurd result, see infra Section V, the Magistrate was correct that the ALJ's interpretation of the regulations is preferable.

II. The ALJ's disability determination under § 416.920(a) did not impermissibly place the burden on the plaintiff to show that he remained disabled.

Halloran is correct that a prior determination of eligibility for benefits "creates a presumption of continuing disability." Taylor v. Heckler, 742 F.2d 253, 255 (5th Cir.1984). Yet the ALJ did not, as Halloran alleges, place the burden on the claimant to demonstrate that he was still disabled. Instead, The ALJ determined, pursuant to 20 C.F.R. § 416.920(a), that taking into account plaintiff's age, education, and work experience, there exist a significant number of jobs in the national economy that he can perform.7 Under the regulations, the burden is on the agency to make this showing; if it cannot do so, the claimant will receive benefits. See Perez v. Barnhart, 415 F.3d 457, 461 (5th Cir. 2005). The Court agrees with the Magistrate that substantial evidence supports the ALJ's finding that the agency carried its burden on this issue.

III. This Court is not required to defer to the interpretation of the regulation set forth in the SSA Program Operations Manual.

The Court acknowledges that the SSA Program Operations Manual supports Halloran's reading of the regulation.8 However, while an agency's interpretation of its own regulation would typically be entitled to deference, that is not the case here because the agency "has put forth two positions that are at loggerheads with each other." Wilson v. Dep't of Agric., 991 F.2d 1211, 1217 (5th Cir.1993). The Manual accords with Halloran's position, but the Commissioner has taken the exact opposite stance in its submissions to the Court in this litigation. And interpretations of regulations contained in legal briefs, no less than those set forth in guidelines manuals, generally deserve deference from Article III courts. Auer v. Robbins, 519 U.S. 452, 462, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997). Given the inconsistent positions set forth by the agency, the Court will interpret the regulation de novo.

IV. The cases on which Halloran relies are not entirely apposite and in any event are not binding on this Court.

None of the cases Halloran cites confronts the precise issue before the Court — namely, whether a claimant's benefits can be discontinued where medical improvement can be neither found nor ruled out, and where the ALJ has made a determination that the claimant is not disabled after performing a full sequential evaluation under § 416.920(a). Insofar as language in those opinions supports Halloran's position, the Court notes that the cases are not binding precedent and respectfully declines to follow them. Halloran's reading is not compelled by the language of the regulation and, as explained below, would lead to absurd results.

V. Halloran's interpretations of the regulation would lead to an absurd result.

Contrary to Halloran's contention, the ALJ did not "skirt" the medical improvement standard through his interpretation of the regulation. Rather, since he was unable to apply the medical improvement standard because of a lack of documentation, the ALJ turned to the only other method of evaluation at his disposal: a full sequential evaluation under § 416.920(a). This course of action was not in any sense "absurd."

In contrast, the absurdity that the Magistrate noted would result from Halloran's reading of the regulation is not "illusory," as Halloran argues, but quite real. The Magistrate notes that, were plaintiff's interpretation accepted, "the Commissioner c[ould] never find that a person is not disabled if the lost, favorable comparison point file cannot be reconstructed and no exception to the medical improvement standard applies."9 Halloran points out that, under § 416.994(b)(2)(iv)(E), "the current documentation [becomes] the basis for future reviews."10 Yet this does not resolve the absurd result identified by the Magistrate. Suppose, for example, that Halloran continues receiving disability benefits and that the SSA performs another evaluation in 2014. His most recent favorable determination would then be the 2009 determination at issue in this case. Thus, under Halloran's theory, the SSA would not be able to discontinue Halloran's benefits unless it found medical improvement from 2009 to 2014, even though the documentation from 2009 showed that Halloran was not disabled. Halloran, though not sufficiently handicapped to be classified as "disabled" within the meaning of the regulation, would continue receiving benefits unless his condition improved even more. In other words, he would be operating under a different definition of the term "disabled" than every other claimant. Such a result would be utterly at odds with the regulations' goal of ensuring that decisions terminating benefits are made "uniform[ly]," "objectively," and "neutrally," § 416.994(b)(5). Accordingly, Halloran's reading should be avoided. See Defensor v. Meissner, 201 F.3d 384, 388 (5th Cir.2000).

Halloran's motion for summary judgment is DENIED and his complaint is DISMISSED WITH PREJUDICE.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

LAWRENCE HALLARON III

VERSUS

CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION1

CIVIL ACTION NO. 12-2051

SECTION "R" (2)

FINDINGS AND RECOMMENDATION

JOSEPH C. WILKINSON, JR., United States Magistrate Judge.

Plaintiff, Lawrence Hallaron, III, seeks judicial review pursuant to Section 405(g) of the Social Security Act (the "Act") of the final decision of the Commissioner of the Social Security Administration (the "Commissioner"), upholding cessation of plaintiff's supplemental security income benefits ("SSI") under Title XVI of the Act. 42 U.S.C. §§ 405(g), 1381 et seq. This matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b) and Local Rule 73.2(B).

Instead of filing a memorandum of facts and law as ordered, Record Doc. No. 13, plaintiff filed a motion for summary judgment. Record Doc. No. 15. Defendant filed a timely reply memorandum of facts and law. Record Doc. No. 17.

I. PROCEDURAL HISTORY

Hallaron began receiving SSI in 1987, based on a determination that he had a mental impairment that met one of the listed impairments in 20 C.F.R. Part 4, Subpart P, Appendix 1. In August 1997, his benefits were continued after a continuing disability review. This most recent medical determination rendered in plaintiff's case is the comparison point decision. 20 C.F.R. § 416.994(b)(5). The Commissioner cannot locate this decision or the evidence upon which it was based. (Tr. 148).

On August 7, 2009, a second continuing disability review found that Hallaron's disability had ceased as of August 1, 2009. (Tr. 33-34). On June 24, 2010, a disability hearing officer upheld the cessation of benefits based on "the Group II exception to Medical Improvement for Fraud or Similar Fault." (Tr. 31-32, 154).

Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"), which was held on July 6, 2011. (Tr. 572-93). On August 25, 2011, the ALJ issued a decision holding that plaintiff was not disabled between August 1, 2009, the benefits cessation date, and the date of the decision. (Tr. 12-24). After the Appeals Council denied review on June 27, 2012, the ALJ's decision became the final decision of the Commissioner for purposes of this court's review. (Tr. 5-7).

II. STATEMENT OF ISSUES ON APPEAL

Plaintiff contends that the ALJ made the following errors:

III. ALJ'S FINDINGS RELEVANT TO ISSUES ON APPEAL

The ALJ made the following relevant findings:

(Tr. 13-23).

IV. ANALYSIS

A. Standards of Review

The function of this court on judicial review is limited to determining whether there is substantial evidence in the record to support the final decision of the Commissioner as trier of fact and whether the Commissioner applied the appropriate legal standards in evaluating the evidence. Perez v. Barnhart, 415 F.3d 457, 461 (5th Cir.2005); Waters v. Barnhart, 276 F.3d 716, 716 (5th Cir.2002); Loza v. Apfel, 219 F.3d 378, 390 (5th Cir. 2000). Substantial evidence is more than a scintilla but less than a preponderance and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971); Perez, 415 F.3d at 461; Loza, 219 F.3d at 393. This court may not "reweigh the evidence in the record, try the issues de novo or substitute its judgment for the Commissioner's, even if the evidence weighs against the Commissioner's decision." Newton v. Apfel, 209 F.3d 448, 452 (5th Cir.2000). The Commissioner, rather than the courts, must resolve conflicts in the evidence. Id.

The ALJ is entitled to make any finding that is supported by substantial evidence, regardless whether other conclusions are also permissible. See Arkansas v. Oklahoma, 503 U.S. 91, 112 S.Ct. 1046, 117 L.Ed.2d 239 (1992). Despite this court's limited function, it must scrutinize the record in its entirety to determine the reasonableness of the decision reached and whether substantial evidence supports it. Perez, 415 F.3d at 461. Any findings of fact by the Commissioner that are supported by substantial evidence are conclusive. Id.; Newton, 209 F.3d at 452; Martinez v. Chater, 64 F.3d 172, 173 (5th Cir. 1995).

To be considered disabled and eligible for SSI, plaintiff must show that he is unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. §§ 423(d)(1)(A).

A previous finding that an individual is "under a disability" for purposes of the Act is periodically reviewed. A determination that a disability has ended may result in termination of benefits. Id. § 421(i); 20 C.F.R. §§ 416.994, 416.1331.

Byerly v. Heckler, 744 F.2d 1143, 1144-45 (5th Cir.1984) (quoting Buckley v. Heckler, 739 F.2d 1047, 1049 (5th Cir.1984)) (citing Simpson v. Schweiker, 691 F.2d 966 (11th Cir.1982); Crosby v. Schweiker, 650 F.2d 777 (5th Cir.1981); Rivas v. Weinberger, 475 F.2d 255, 258 (5th Cir.1973)) (emphasis added).

The basis for the presumption of continued disability "is that a prior determination of disability is binding on all parties to the hearing and has a res judicata effect as to that record." Gill v. Heckler, 740 F.2d 396, 397 (5th Cir.1984) (citing Buckley, 739 F.2d at 1048; 20 C.F.R. §§ 404.905, 416.1455 (1983)). The presumption is rebuttable by proof of improvement. Id. (citing Buckley, 739 F.2d at 1048).

To determine whether a previously granted disability has ceased,

Garza v. Astrue, No. 3:11-cv-3545-G-BN, 2013 WL 796727, at *4 (N.D.Tex. Feb. 7, 2013), report & recommendation adopted, 2013 WL 818723 (N.D.Tex. Mar. 5, 2013) (quoting Teague v. Astrue, 342 Fed.Appx. 962, 963-64 (5th Cir.2009)) (citing 20 C.F.R. §§ 416.994(b)(1)(i), 404.1594(b)(3), 416.994(b)(1)(I)); Waters v. Barnhart, 276 F.3d 716, 718 (5th Cir.2002); Gardner v. Astrue, No. 4:10-cv226, 2011 WL 2292179, at *3 (N.D.Tex. Apr. 19, 2011) (footnote omitted) (emphasis added).

B. Factual Background

At the outset of the hearing, the ALJ stated that the file had "a big red sheet" stapled to it

(Tr. 574-75).

When the ALJ asked whether plaintiff was aware that he was being investigated for fraud, Hallaron said he was. He explained that he is "wheelchair bound. I have a wheelchair that I use, and also I have a walker prescribed by my doctor. And they told me I was not supposed to be picking up my wheelchair, and they took pictures of me picking up my wheelchair." (Tr. 575). He said "they" were the "CDI investigators" from Social Security. He stated that he was separated from his wife, who took pictures of him picking up his wheelchair and putting it in a car, and filed a fraud complaint against him. (Tr. 575-76). Plaintiff said he picked up the wheelchair because the nurse who takes care of him had sickle cell anemia, was pregnant and was not supposed to pick up anything over 10 pounds, so he was helping her. He stated that he did not know whether that investigation had been resolved or was still ongoing, but he was still receiving benefits.

When asked whether his benefits award was originally based on bipolar disorder, Hallaron said he could not remember because he has been on disability for more than 20 years. (Tr. 576). He stated that he had tried to work once in a clerical job for Louisiana Rehabilitation Services, but could not remember for how long. The ALJ then realized that plaintiff had not yet been sworn and administered the oath. (Tr. 577-78).

Hallaron testified that he was 49 years old2 and had completed the ninth grade. When asked if he was able to read and write, he replied, "At times." (Tr. 578-79). He testified that it depended on several factors, including that he is on medication and wears glasses to read. He stated that he had an eye injury, in which his eyes were accidentally burned by welding when railings were being installed in front of his house. He said his ophthalmologist told him that he will eventually go blind as he gets older. He testified that he buys his reading glasses at Walgreen's because prescription glasses would cost about $400, which he cannot afford. (Tr. 579-80). He said the reading glasses work "sometimes."

Plaintiff stated that he sleeps a lot because of his "medications and a lot of other factors." When asked what he does when not sleeping, he complained that the home health care staff for himself and his cousin Martin, who is also disabled, are terrible and do not do what they are supposed to do. When asked again what he does on a typical day, he said there is not much he can do, except watch the television news and read some of the newspaper. (Tr. 580-81). He testified that he does not read the entire newspaper, but just reads important facts that he wants to know, so he can keep tabs on what is going on in the community and society. He said he does not read books, which make him fall asleep because they are so depressing and boring.

Hallaron testified that his home health care staff comes in from 8:00 a.m. until 3:00, 4:00 or 5:00 p.m. He said he was not sure when they leave because he is usually asleep. He stated that the health aide cooks meals for him and his cousin and helps him to bathe, groom, brush his teeth and ambulate. (Tr. 581-82). He testified that he falls without warning, has knocked out several teeth and has injured himself badly by falling. He said the aide makes sure he does not fall.

Plaintiff said he does not cook because he gets dizzy and faint from the heat and that his blood pressure medicine makes him very sick at times. He stated that he has tried to cook and has burned himself badly, so his doctor told him not to go near a stove or anything hot. He said that anything cooked for him cannot be hot, but must be tepid, because he has burned his hands and fingers by grabbing a hot bowl. (Tr. 582).

Hallaron testified that he cannot shop for groceries by himself and that the aides help him with that. He stated that he does not drive anymore and that his driver's license was taken away by the state because of the medications he takes. He said he was driving with his wife and two neighbor children one day and his motor functions or nerve synapses went dead, his arms dropped and he could not feel anything or even call out. He stated that he was finally able to put his foot on the brake and stop the car, and then went to the emergency room, where the doctor told him that he has Lou Gehrig's disease.3 Plaintiff said he has had other accidents, such as when he fell out of the shower, landed between the shower and the toilet, and was knocked unconscious for more than four hours before he was found. He testified that he was taken to Tulane Medical Center and put on intravenous morphine. He stated that, when he regained consciousness at the hospital, the doctor said that he had Lou Gehrig's disease and that eventually his condition would worsen.

Plaintiff testified that his condition embarrasses him in public and that he does not like going out in public anymore. (Tr. 583). He said he has problems with tremors that come in sudden attacks of involuntary movements, prevent him from being able to speak properly and are very embarrassing because people stare at him. He stated that the nurse, family or friends who are with him gather around to keep other people from seeing him, because "it gets very serious to the point to where they have to call the paramedics, and they have to take me to the emergency room."

Hallaron said the tremors can come on without warning and are more rapid when he is under stress or upset. He stated that his doctors told him not to get upset or stressed out and that he should not be in arguments or get involved in other people's situations, but should take care of himself because it is going to get worse. He testified that he has frequent episodes of temporary paralysis, but could not explain what he meant by "frequently" because "I don't keep a time clock." He said that such an episode occurs without warning. (Tr. 584).

When asked whether he has problems with his memory, plaintiff responded that he had a very bad birth and was born with multiple defects. He stated that he was in a near-fatal car accident when a drunk driver hit his car and he was bedridden for a year afterwards. He said he was working for Louisiana Rehabilitation Services at the time and that his "health just plummeted" after that. He recalled that the accident happened on May 1st, but was unsure of the year, saying it was possibly in 1995.

When asked whether he has problems following instructions, Hallaron stated that it is embarrassing because he is unable to follow simple instructions or live a normal, decent, human life. (Tr. 585). He said he has problems with his attention in that he forgets doctor's appointments, when to pay bills and "a lot of things."

Plaintiff testified that he needs to use a wheelchair and a walker because he has a neurological impairment and orthopedic impairments in his back and both arms. He said he recently had surgery on his left hand and that he has nerve damage in all of his extremities. He stated he was not sure what caused the nerve damage and that he has orthopedic impairments in his arms, hands, knees and feet. He said he wakes up some mornings and has no problems with the bones in his feet, and other mornings he cannot walk because of rheumatoid pain in his feet, knees, hands and fingers. (Tr. 586). He said he suffers with that pain "pretty much every day now."

Hallaron testified that his doctors advised him not to stand by himself. He said his medical records reflect that he was advised to have someone with him. He stated that, "when the medical staff leaves our house, we are required to find a place to be, and usually I'll take to the bed. When they leave, I stay in the bed."

Plaintiff said his ability to sit is limited by pain and that "these chairs are really uncomfortable." He testified that he does not like going to places, especially WalMart, where there is no place to sit and rest. He stated that he goes to Wal-Mart but "it's really miserable" because the "buggies you use to ride around in [are] hell on my back." He stated he feels "like I've been worked over" when he comes home from Wal-Mart and then "I sleep sometimes four4 hours. Sometimes I sleep all day, all night, and all the next day." (Tr. 587).

Hallaron stated that some doctors have said he has multiple sclerosis, while others have said he does not. He testified that another doctor said he had Lou Gehrig's disease and other doctors "didn't say I didn't. They just said that [it's] possible it could be something else, but within four years, they'll know. But they did indicate very strongly that I won't be here long; make the best of what time I have, and fight with all my might."

Plaintiff testified that he graduated from a two-year nursing program at Gretna College. (Tr. 588). He said he is right-handed. (Tr. 589).

C. Vocational Expert Testimony

A vocational expert, Patricia Riggle, testified at the hearing that the file indicated that plaintiff worked for a short time as a clerk, but there was no information in the file about how the job was performed. (Tr. 589).

The ALJ posed a hypothetical of a person of the same age and limited education as plaintiff with no past work experience; who can read, write, add and subtract; lift and carry a maximum of 20 pounds frequently; walk and stand for four to five hours in an eight-hour day in increments of 50 to 60 minutes at a time; and sit for six or more hours in an eight-hour day. The hypothetical person can stoop only occasionally, can grasp and hold objects and can use his fingers for precise work up to two-thirds of a work day, but not continuously, such as on a production line. (Tr. 590). Riggle testified that such a person could perform jobs that exist in significant numbers in the regional and national economy, such as receptionist and information clerk, general office clerk and bookkeeping clerk. (Tr. 590-91).

The ALJ posed a second hypothetical of a person of the same age, education and past work experience with the same residual functional capacity and limitations as in the first hypothetical, but with slight to moderate limitations in the abilities to complete work tasks in a normal work day at a consistent pace and to maintain attention and concentration for an extended period, as a result of a combination of factors, including pain and the effects of medications. The ALJ defined moderate as having some adverse effect on the ability to perform at optimum level for up to one-third of the work day, but at no time precluding work altogether. Riggle stated that this hypothetical person could perform the same jobs as in the first hypothetical. (Tr. 591).

Plaintiff's attorney posed a hypothetical the same as the first of the ALJ's hypotheticals, but with the added limitation that the person's ability to understand, remember and carry out either simple or complex instructions was extremely limited due to severe memory problems. Riggle stated that if "extreme" means that the person would not be able to complete the work, such a person could not perform any job. (Tr. 591-92). Hallaron's counsel then added additional extreme limitations in the hypothetical person's ability to maintain sufficient attention to perform simple repetitive tasks for two-hour blocks of time and to sustain effort and persistence at a normal pace over the course of a 40-hour work week. Using the same definition of "extreme," Riggle testified that the hypothetical person could not hold down any job. (Tr. 592).

D. Medical Evidence

I have reviewed the medical records in evidence and the ALJ's summary of the medical evidence. (Tr. 16-17, 19-22). I find the ALJ's summary of the medical evidence substantially correct and incorporate it herein by reference, with the modifications, corrections and highlights noted below.

E. Plaintiff's Appeal

1. The ALJ applied the appropriate legal standards in determining that plaintiff's disability had ceased.

Plaintiff argues that the ALJ improperly found him not disabled when the prior comparison point decision and the evidence upon which it was based were lost and not reconstructed, and the ALJ found that no exception to the medical improvement standard applied. Hallaron contends that the ALJ erred (1) by not following the entire seven-step process for cessation determinations based on medical improvement, 20 C.F.R. § 416.994(b)(5), and (2) in his use of the additional procedure for a lost file case, id. § 416.994(b)(2)(iv)(e). Plaintiff argues that medical improvement cannot be found under these standards if a lost file cannot be reconstructed and no exception to the medical improvement standard applies. He asserts that, in such a case, the presumption of disability based on the earlier determination of disability continues, so that his own disability must be found to continue.

Plaintiff's argument leads to the absurd result that the Commissioner can never find that a person is not disabled if the lost, favorable comparison point file cannot be reconstructed and no exception to the medical improvement standard applies. The regulations do not require this result, and the court should avoid reading them to produce an absurd result. Defensor v. Meissner, 201 F.3d 384, 388 (5th Cir.2000); United States v. Marine Shale Processors, 81 F.3d 1329, 1345 (5th Cir.1996); United States v. CITGO Petroleum Corp., No. C-06-563, 2011 WL 1155684, at *3 (S.D.Tex. Mar. 28, 2011) (citing Gen. Elec. Co. v. United States, 221 Ct.Cl. 771, 610 F.2d 730, 734 (1979); Rucker v. Wabash R.R., 418 F.2d 146 (7th Cir.1969)); GE Capital Commercial, Inc. v. Wright & Wright, Inc., No. 3:09-CV-572-L, 2009 WL 5173954, at *5 (N.D.Tex. Dec. 31, 2009) (citing Dewsnup v. Timm, 502 U.S. 410, 427, 112 S.Ct. 773, 116 L.Ed.2d 903 (1992)).

Section 416.994(b)(5) provides a procedure to assess whether a previously found disability has medically improved to the point that the claimant is no longer disabled.

20 C.F.R. § 416.994(b)(5) (emphasis added).

The fraud exception is one of the "second group of exceptions to medical improvement" mentioned in Step 4, under which the Commissioner may order a cessation of benefits without a determination that the claimant has experienced medical improvement or can engage in substantial gainful activity.

Id. § 416.994(b)(4)(i).

Hallaron argues that the ALJ erred by failing to find at Step 2 that there had been no medical improvement, which would then direct the ALJ to proceed to Step 4, and that the ALJ erred by failing to find at Step 4 that plaintiff's disability continued, when the ALJ found that the Group II fraud exception does not apply. After finding that the fraud exception does not apply, which the regulation plainly states can occur at any step, the ALJ found that Hallaron has not been under a disability since August 1, 2009, the date when the agency initially found that cessation of disability occurred.

The ALJ properly applied the law when he acknowledged that the previous file could neither be located nor reconstructed, and then engaged in the special procedure for such cases. Under that special procedure, the ALJ first found that Hallaron is able to engage in substantial gainful activity and then that the prior file cannot be reconstructed.

Id. § 416.994(b)(2)(iv)(E) (emphasis added).

Hallaron argues that, because the ALJ found that the fraud exception does not apply and the file cannot be reconstructed, "medical improvement cannot be found," which he construes to mean that his disability must be found to continue because of the presumption of continued disability. However, the lost file regulation does not say that the Commissioner must find that a disability continues when the file cannot be reconstructed and no exception to the medical improvement standard applies. Rather, Section 416.994(b)(2)(iv)(E) says that the Commissioner cannot find that medical improvement has occurred in these circumstances.

This is reasonable because medical improvement is defined as a decrease in the medical severity of an impairment that was present at the time of the most recent favorable disability determination. The ALJ found nothing in the current medical records that provided any evidence for the basis of the 1997 favorable determination. (Tr. 13). The ALJ could not determine whether any decrease in severity, i.e., medical improvement, occurred in the 14 years since the comparison point decision because the prior file is lost and cannot be reconstructed. He therefore could not answer the Step 2 question of 20 C.F.R. § 416.994(b)(5) of whether there has, or has not, been medical improvement. He would only proceed to Step 4 of the medical improvement standard "[i]f we found at step 2 in paragraph (b)(5)(ii) of this section that there has been no medical improvement." Because he could not answer the Step 2 question, he could not proceed to Step 4, which is the only step stating that "your disability will be found to continue" if all of the conditions precedent are met.

Thus, because of the inability to reconstruct the lost file from 1997 and the concomitant inability to determine whether medical improvement had occurred, the ALJ did not find that medical improvement had occurred and did not continue to use the medical improvement standard after finding that the fraud exception does not apply. Instead, he "perform[ed] a full sequential evaluation pursuant to 20 C.F.R. § 416.920(a)" based on the current evidence (Tr. 13) and found that plaintiff has not been disabled since August 1, 2009.

The Commissioner has promulgated regulations, including 20 C.F.R. § 416.920, that provide procedures for evaluating a claim and determining disability in the first instance. Id. §§ 404.1501 to 404.1599 & appendices, §§ 416.901 to 416.998 (2011). The regulations include a five-step evaluation process for determining whether an impairment prevents a person from engaging in any substantial gainful activity. Id. §§ 404.1520, 416.920; Perez, 415 F.3d at 461; Waters, 276 F.3d at 716; Loza, 219 F.3d at 393.6 The five-step inquiry terminates if the Commissioner finds at any step that the claimant is or is not disabled. Perez, 415 F.3d at 461.

The claimant has the burden of proof under the first four parts of the inquiry. If he successfully carries this burden, the burden shifts to the Commissioner to show that other substantial gainful employment is available in the national economy that the claimant is capable of performing. When the Commissioner shows that the claimant is capable of engaging in alternative employment, the burden of proof shifts back to the claimant to rebut this finding. Id.; Newton, 209 F.3d at 453.

The court "weigh[s] four elements of proof when determining whether there is substantial evidence of disability: (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) his age, education, and work history." Martinez, 64 F.3d at 174.

The ALJ reviewed the extremely voluminous record and followed the five-step evaluation procedure to determine whether Hallaron is disabled based on his current impairments. The ALJ did not find that plaintiff experienced medical improvement, a finding that simply cannot be made in the absence of the lost or reconstructed file when the comparison point decision was made so long ago. The ALJ was not required to use the seven-step medical improvement procedure in these circumstances.

Accordingly, plaintiff's first assignment of error lacks merit.

2. The "fraud" label on the front of the case file did not deprive plaintiff of a neutral and objective hearing and decision.

Hallaron argues that the "fraud" label on the front of the case file deprived him of a neutral and objective hearing and decision. See 20 C.F.R. § 498.204(a) ("The ALJ will conduct a fair and impartial hearing, avoid delay, maintain order and assure that a record of the proceeding is made."). The ALJ himself identified the label on the record at the hearing and stated that "it doesn't influence me in any way, and I have absolutely no problem approaching this case with an open mind." (Tr. 574-75).

The ALJ is entitled to a presumption of neutrality and objectivity, and plaintiff bears the burden to rebut that presumption. Crenshaw v. Apfel, 214 F.3d 1350, 2000 WL 634084 (5th Cir. May 3, 2000) (citing Schweiker v. McClure, 456 U.S. 188, 195-96, 102 S.Ct. 1665, 72 L.Ed.2d 1 (1982); Muse v. Sullivan, 925 F.2d 785, 790 (5th Cir.1991)).

Hallaron has not identified any evidence to contradict either the presumption of neutrality or the ALJ's specific statement that he had nothing to do with the fraud label and was approaching the case with an open mind. The ALJ performed a detailed analysis of the voluminous record, including the report of the Cooperative Disability Investigations Unit of the Office of the Inspector General on which the disability hearing officer had previously based a decision that the fraud exception to the medical improvement standard applied. The ALJ expressly rejected that conclusion as unsupported by the record (Tr. 13), but considered the investigative report along with other evidence when assessing plaintiff's credibility and the credibility of the medical opinions under the five-step sequential evaluation for determining disability. The ALJ must assess the record as a whole to assess credibility during that evaluation. Salgado v. Astrue, 271 Fed.Appx. 456, 462 (5th Cir.2008) (citing SSR 96-7P, 1996 WL 374186, at *1 (July 2, 1996)); Hoelck v. Astrue, 261 Fed.Appx. 683, 686 (5th Cir. 2008) (citing Hollis v. Bowen, 837 F.2d 1378, 1384-85 (5th Cir.1988); Leggett v. Chater, 67 F.3d 558, 565 (5th Cir.1995)).

Accordingly, this assignment of error lacks merit.

3. The ALJ did not improperly accept the lay observations of the Cooperative Disability Investigations Unit of the Office of the Inspector General over the medical findings and opinions of the psychological consultative examiner.

The ALJ found that plaintiff's statements concerning the intensity, persistence and limiting effects of his symptoms are not credible and lack any substantive support in the record. (Tr. 18). After discussing why the evidence of record failed to support plaintiffs allegations (Tr. 18-21), the ALJ additionally stated that Hallaron's "credibility is further undermined by the findings set forth in the August 6, 2009 Report of Investigation by a special agent from the Cooperative Disability Investigations Unit, Office of the Inspector General." (Tr. 21). Hallaron argues that the ALJ erred by accepting the lay observations of the investigators over the medical findings of the psychological consultative examiner, Thomas M. Welsh, Ph.D., based on his July 6, 2009, examination. (Tr. 235-38).

The ALJ "fully considered" Dr. Welsh's report, in which the psychologist found, with out having reviewed any medical records, with out any psychological testing and based solely on a mental status examination, that plaintiff has severe problems with his short-term memory and concentration. Dr. Welsh diagnosed a cognitive disorder, not otherwise specified, as a result of a motor vehicle accident in 1995, and opined that Hallaron has some marked and some extreme limitations in his ability to handle some of the cognitive functions of working. (Tr. 237). The ALJ found that Dr. Welsh's report was contradicted by the special agent's report of his interactions with Hallaron that occurred within minutes after the consultative examination. The ALJ concluded that "it is apparent that Dr. Welsh was not aware of all relevant factors in this case at the time he issued his report. Consequently, his findings with regard to claimant's cognitive status and functioning are not accorded significant weight.... Claimant has been examined by numerous other physicians that he saw on his own initiative. None of those sources has set forth specific functional limitations in reports or clinic notes." (Tr. 22).

As he was required to do, the ALJ considered all of the evidence, including Dr. Welsh's opinions, and weighed the evidence to resolve any conflicts. Escalante v. Astrue, 286 Fed.Appx. 179, 180 (5th Cir.2008) (citing Griego v. Sullivan, 940 F.2d 942, 945 (5th Cir.1991); Moore v. Sullivan, 919 F.2d 901, 905 (5th Cir. 1990)); Newton, 209 F.3d at 452; Greenspan v. Shalala, 38 F.3d 232, 237 (5th Cir.1994). "[T]he ALJ is free to reject the opinion of any physician when the evidence supports a contrary conclusion." Newton, 209 F.3d at 455 (quotation omitted); see also 20 C.F.R. § 404.1527(c)(2) ("If any of the evidence in your case record, including any medical opinion(s), is inconsistent with other evidence or is internally inconsistent, we will weigh all the other evidence and see whether we can decide whether you are disabled based on the evidence we have."); id. § 416.927(c)(4) ("Generally, the more consistent an opinion is with the record as a whole, the more weight we will give to that opinion."); id. § 416.927(c)(6)("When we consider how much weight to give to a medical opinion, we will also consider any factors you or others bring to our attention, or of which we are aware, which tend to support or contradict the opinion."). The opinions of a physician may be assigned little or no weight when good cause is shown. Good cause may permit an ALJ to discount the weight of a physician's opinions relative to other experts where the physician's evidence is conclusory, unsupported by medically acceptable clinical, laboratory, or diagnostic techniques, or otherwise unsupported by the evidence. Newton, 209 F.3d at 455-56.

The ALJ's lengthy decision demonstrates that he carefully considered Dr. Welsh's report, but rejected Dr. Welsh's conclusions regarding Hallaron's ability to function in the work setting, primarily based on the credibility of plaintiff's allegations to both Dr. Welsh and his numerous other healthcare providers. The ALJ has the responsibility to evaluate the credibility of witnesses, Masterson v. Barnhart, 309 F.3d 267, 272 (5th Cir.2002), and "credibility conclusions are `precisely the kinds of determinations that the ALJ is best positioned to make.'" Spruill v. Astrue, 299 Fed.Appx. 356, 358 (5th Cir. 2008) (quoting Falco v. Shalala, 27 F.3d 160, 164 (5th Cir.1994)). Thus, the ALJ's credibility evaluation is entitled to considerable deference by this court. McKnight v. Astrue, 340 Fed.Appx. 176, 181 (5th Cir.2009); Bedford v. Astrue, 236 Fed. Appx. 957, 962 (5th Cir.2007). The ALJ's explanation of his reasons for finding plaintiff not entirely credible is all that is required. James J. Flanagan Stevedores, Inc. v. Gallagher, 219 F.3d 426, 430 & n. 8 (5th Cir.2000) (citing Falco, 27 F.3d at 163); Godbolt v. Apfel, No. 98-1680, 1999 WL 179476, at *9 (E.D.La. Mar. 31, 1999).

The ALJ described in detail why Hallaron's credibility was discredited in multiple ways by the entire record, including, but not only, the special agent's report. These findings are substantially supported by the record and need not be reiterated here. Indeed, my review of the record reveals that it contains more inconsistencies than the ALJ cited in his decision.

The opinions of Dr. Welsh that the ALJ declined to credit are not substantially supported by the record. First, Dr. Welsh did not review any of the other medical records and was limited to relying on the information given to him by plaintiff and his cousin, Martin Alcoser, who accompanied plaintiff to the examination and who exercises plaintiff's power of attorney and handles his finances. Second, Dr. Welsh's report reflects discrepancies between what plaintiff told him on the one hand, and plaintiff's own testimony and the remainder of the record on the other hand.

Hallaron reported to Dr. Welsh that he had an uncomplicated birth and normal early development (Tr. 236), while he testified at the hearing that he had a very bad birth and was born with multiple defects. (Tr. 585). Hallaron told Dr. Welsh that he "has been told that he needs back surgery" (Tr. 236), but the medical records contain no such recommendation from any physician. Indeed, the medical records document the repeated lack of objective clinical findings regarding plaintiff's musculoskeletal back complaints. (Tr. 197, 200, 208, 214, 227-32, 316, 464, 478, 485). Plaintiff denied any history of substance abuse to Dr. Welsh, while the medical records contain several references to his physicians' suspicions about his prescription drug abuse, which the ALJ also took into account.

Hallaron told Dr. Welsh that he "work[ed] as a private investigator for about two years." (Tr. 236). The record does not support this statement. In a Continuing Disability Review form dated December 14, 2008, plaintiff stated that he graduated with highest honors from a Private Investigation/Detective course at Stratford Career College in St. Albans, Vermont in 2005, long after the Commissioner adjudged in 1997 that he continued to be disabled. (Tr. 90). Hallaron did not report any experience as a private investigator on the portion of this form for past work. (Tr. 91). He stated on the same form that he graduated from Gretna Career College in 2005 with a 3.89 average and that his hobbies included watching forensics on television and reading law books. (Tr. 90). These collegiate honors and activities appear to be inconsistent with the memory and concentration problems that plaintiff reported to Dr. Welsh and with Dr. Welsh's findings regarding plaintiff's cognitive abilities.

In sum, the ALJ's numerous reasons for discounting Hallaron's credibility are substantially supported by the medical record and provide good cause for his decision to accord no significant weight to Dr. Welsh's opinions. Accordingly, this assignment of error lacks merit.

CONCLUSION

The ALJ applied the appropriate legal standards to determine that Hallaron was not disabled from August 1, 2009 to the date of the decision. There is no evidence that the "fraud" label on the front of the case file deprived plaintiff of an objective hearing and decision. The ALJ did not improperly accept the lay observations of the Cooperative Disability Investigations Unit of the Office of the Inspector General over the medical findings and opinions of the psychological consultative examiner, but properly weighed all of the evidence to find that plaintiff is not credible and that Dr. Welsh's opinions are not entitled to significant weight.

RECOMMENDATION

For the foregoing reasons, IT IS RECOMMENDED that plaintiff's motion for summary judgment be DENIED and his complaint be DISMISSED WITH PREJUDICE.

A party's failure to file written objections to the proposed findings, conclusions, and recommendation in a magistrate judge's report and recommendation within fourteen (14) days after being served with a copy shall bar that party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court, provided that the party has been served with notice that such consequences will result from a failure to object. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1430 (5th Cir.1996) (en banc) (citing 28 U.S.C. § 636(b)(1)).7

New Orleans, Louisiana, this 4th day of June, 2013.