ORDER AND OPINION
THOMAS MORRIS, Magistrate Judge
This matter is before the Court on Plaintiff's complaint (Doc. #1), seeking review of the final decision of the Commissioner of Social Security (Commissioner) that discontinued her disability insurance benefits (DIB). Plaintiff filed a legal brief in opposition to the Commissioner's decision (Doc. #13, P's Brief). Defendant filed his brief in support of the decision to deny disability benefits (Doc. #14, D's Brief). Both parties have consented to the exercise of jurisdiction by a magistrate judge, and the case has been referred to the undersigned by the Order of Reference dated August 21, 2009 (Doc. #8). The Commissioner has filed the transcript of the of the underlying administrative proceedings and evidentiary record (hereinafter referred to as "Tr." followed by the appropriate page number).
The Court has reviewed the record and has given it due consideration in its entirety, including the arguments presented by the parties in their briefs and the materials provided in the transcript of the underlying proceedings. Upon review of the record, the Court found the issues raised by Plaintiff were fully briefed and concluded oral argument would not benefit the Court in making its determinations. Accordingly, the matter has been decided on the written record. For the reasons set out herein, the decision is AFFIRMED.
I. PROCEDURAL HISTORY
This case is an appeal under Title 42 U.S.C. § 405(g) of a final administrative decision of the Commissioner of Social Security, which terminated Mrs. Trevizo's disability benefits. Mrs. Trevizo filed a claim for a period of disability and DIB in September 1999, and was found disabled with an onset date of disability of October 1, 1998 (Tr. 32). At that time it was determined that Mrs. Trevizo's major depression and mental impairment prevented her from performing any work at any level of exertion due to non-exertional limitations. Id.
In March of 2006, the Social Security Administration (SSA) determined that Mrs. Trevizo was no longer disabled and that her benefits would cease (Tr. 59). She requested reconsideration of this decision on March 13, 2006 (Tr. 64-65). The disability hearing officer determined that Mrs. Trevizo was able to work and denied reconsideration on December 19, 2006 (Tr. 80). Mrs. Trevizo then requested a hearing before an administrative law judge (ALJ) on January 23, 2007 (Tr. 90). A hearing was held before ALJ John D. Thompson, Jr., on June 20, 2007 (Tr. 578-628). Mrs. Trevizo testified at the administrative hearing, as did vocational expert (VE) Paul Dolan. At the time of the administrative hearing, Mrs. Trevizo was represented by her current counsel of record, Mr. Jack Gibney, Esq. As set forth in his decision dated October 10, 2007, ALJ Thompson found that Mrs. Trevizo was no longer disabled (Tr. 10-19). The Appeals Council denied Mrs. Trevizo's request for review of the ALJ's decision on May 27, 2009 (Tr. 5-7). Having exhausted all administrative remedies, Mrs. Trevizo timely filed a complaint in this Court.
II. STATEMENT OF THE FACTS
Mrs. Trevizo was born on November 13, 1959, making her 47 years old as of the date of the administrative hearing (Tr. 581). Mrs. Trevizo has a high school education and past relevant work as an aircraft mechanic, a shoe sales clerk and a janitor (Tr. 582-587). On September 25, 2000, ALJ James R. Russell determined that Mrs. Trevizo had not performed substantial gainful activity since her onset date of disability, and found that she suffered from major depression and mental impairment (Tr. 31-32). Disability benefits were awarded in that determination.
In March 2006, a continuing disability review was conducted ( see Tr. 59-63). Based on reports received in January 2006 from Mrs. Trevizo's treating psychiatrist, Dr. Russell Scott Findley, and the Orange Park Medical Center Behavioral Health Intensive Outpatient Program, it was determined Mrs. Trevizo's medical condition had improved to the point she could perform work related activities as of March 1, 2006 (Tr. 59-63). Because September 25, 2000 was the last favorable decision continuing Mrs. Trevizo's DIB, ALJ Thompson used that date as the comparison point decision (CPD) date (Tr. 14).
Subsequent to the June 2007 hearing, ALJ Thompson issued an unfavorable decision in which he determined that Mrs. Trevizo's impairments had decreased in severity as of March 1, 2006 and her disability ended (Tr. 15). "After careful consideration of the entire record," the ALJ found that Mrs. Trevizo had the residual functional capacity ("RFC") "to perform a full range of work at all exertional levels but with the following nonexertional limitations: she has no impediment to her ability to understand, remember and carry out simple job instructions; she has [] `moderate' limitations in her ability to understand, remember and carry out detailed but not complex instructions; make judgments on detailed but not complex work-related decisions; interact appropriately with the general public, supervisors and coworkers; and respond appropriately to usual work situations and to changes in a routine work setting." Id. The ALJ specifically found that Mrs. Trevizo's RFC as of March 1, 2006 was less restrictive than the one she had at the time of the CPD (Tr. 18).
The ALJ then determined that Mrs. Trevizo had regained the capacity to perform her past relevant work as a janitor (Tr. 19). The ALJ further determined that in addition to performing past relevant work, Mrs. Trevizo could perform other jobs identified by the vocational expert, including such skilled and semiskilled jobs as an information clerk, a general clerk, telemarketer, ticket seller, office helper and a food service worker in a hospital (Tr. 19).
III. THE STANDARD OF REVIEW
The scope of this Court's review is generally limited to determining whether the ALJ applied the correct legal standards, McRoberts v. Bowen, 841 F.2d 1077, 1080 (11th Cir. 1988), and whether the findings are supported by substantial evidence, Richardson v. Perales, 402 U.S. 389, 390 (1971). The Commissioner's findings of facts are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is more than a scintilla — i.e., the evidence must do more than merely create a suspicion of the existence of a fact, and must include such relevant evidence as a reasonable person would accept as adequate to support the conclusion. Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995) ( citing Walden v. Schweiker, 672 F.2d 835, 838 (11th Cir. 1982)).
Where the Commissioner's decision is supported by substantial evidence, the Court will affirm, even if the reviewer would have reached a contrary result as finder of fact, and even if the reviewer finds that the evidence preponderates against the Commissioner's decision. Edwards v. Sullivan, 937 F.2d 580, 584 n. 3 (11th Cir. 1991); Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991). The district court must view the evidence as a whole, taking into account evidence favorable as well as unfavorable to the decision. Foote, 67 F.3d at 1560.
The Commissioner must apply the correct law and demonstrate that he has done so. While the Court reviews the Commissioner's decision with deference to the factual findings, no such deference is given to the legal conclusions. Keeton v. Dep't of Health and Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994) ( citing Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th Cir. 1991)). Therefore, in determining whether the Commissioner's decision is supported by substantial evidence, the reviewing court must not re-weigh the evidence, but must determine whether the record, as a whole, contains sufficient evidence to permit a reasonable mind to conclude that the plaintiff is not disabled. Bloodsworth v. Heckler, 703 F.2d 1233 (11th Cir. 1983).
IV. SOCIAL SECURITY ACT STANDARD FOR DISCONTINUATION OF DISABILITY BENEFITS
A termination of previously awarded disability benefits is governed by 42 U.S.C. § 423(f), which provides in relevant part that benefits may only be terminated if there is substantial evidence to support a finding of medical improvement related to an individual's ability to work and the individual is now able to engage in substantial gainful activity. 42 U.S.C. § 423(f) (emphasis added).
The Commissioner has established an eight step sequential process used to determine whether medical improvement has occurred and whether a claimant's disability benefits should cease. 20 C.F.R § 404.1594(f) . The first question is whether the claimant is engaged in substantial gainful activity. Id. If not, the second question is whether the claimant has an impairment or combination of impairments which meets or equals the severity of an impairment in the Listings. Id.
Unless otherwise specified, all references to 20 C.F.R. will be to the 2010 edition.
The Listing of Impairments (the Listings) is in appendix 1 of 20 C.F.R. Pt. 404 Subpt. P. It describes for each of the major body systems impairments that the Commissioner considers to be severe enough to prevent an individual from doing any gainful activity, regardless of his or her age, education, or work experience. 20 C.F.R. § 404.1525(a). The specific listings follow the introduction in each body system, after the heading, Category of Impairments. Within each listing, the objective medical and other findings needed to satisfy the criteria of that listing are specified. An impairment meets the requirements of a listing when it satisfies all of the criteria of that listing, including any relevant criteria in the introduction, and meets the duration requirement. 20 C.F.R. § 404.1525(c)(3).
If the claimant's impairments do not meet or equal a listed impairment, the third step is to determine whether there has been medical improvement. Id. If so, the fourth question is whether the claimant's improvement is related to his or her ability to work based upon the claimant's residual functional capacity. Id. The fifth question is whether any exceptions apply under subsections (d) (relating to advances in medical treatments and/or therapies that may have improved a claimant's condition etc.) and (e) (relating to the prior determination of disability being found in error or was fraudulently obtained etc.) Id.
At the sixth step, if it has been determined that there has been medical improvement, it must then be determined whether all the claimant's current impairments in combination are severe. Id. (emphasis added). If it is found that the claimant's current impairments are severe, it must then be determined, at the seventh step, whether given current impairments, the claimant is able to engage in the type of work he or she had done in the past. Id.
At the eighth and final step, if the claimant is not able to engage in the type of work done in the past, the SSA must consider, given the claimant's current impairments, age, education, and past work experience, whether the claimant is able to engage in other substantial gainful activity. Id. (emphasis added).
V. ISSUES AND ANALYSIS
The question presented is whether the ALJ erred when he rejected the opinion evidence of Dr. Martinez to make a determination that Mrs. Trevizo was no longer disabled under 42 U.S.C. § 423(f) ( see generally, P's Brief). In this regard, Plaintiff specifically challenges the weight the ALJ afforded to the opinion evidence of Dr. Martinez and, alternatively, suggests the ALJ failed to order a necessary consultative psychiatric examination of Plaintiff's condition ( see generally, P's Brief).
In the instant case, the ALJ found at the sixth step of the disability review evaluation that Mrs. Trevizo had a decrease in the medical severity of her impairments (Tr. 15). Relying in part on the March 7, 2006 assessment by a DDS reviewing psychologist, Dr. Stephen Wise, the ALJ found the medical evidence supported his determination that Mrs. Trevizo had the ability to perform simple and basic tasks, and to maintain attention and concentration for routine uncomplicated tasks for 2-hour periods during an 8-hour workday (Tr. 15; see also Tr. 423-25). At the seventh step, the ALJ found Mrs. Trevizo was capable of returning to her past relevant work as a janitor (Tr. 19).
Mrs. Trevizo's counsel argues the ALJ erred in not affording the "appropriate weight to Dr. Martinez" (P's Brief at 5). The Defendant counters that this claim lacks merit as the ALJ properly evaluated the opinion evidence from Dr. Martinez and discounted it because it was inconsistent with the other evidence of record (Defendant's Brief at 6). The Court's independent review of the ALJ's decision and the underlying administrative record reveals the ALJ clearly had good cause to discount Dr. Martinez's opinion, which essentially stated that Mrs. Trevizo had such extreme limitations she could not function ( see Tr. 18, 561-64).
A treating physician's, or psychiatrist's, opinion will be given controlling weight if the opinion on "the nature and severity of [the claimant's] impairment(s) is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record." 20 C.F.R. § 404.1527(d)(2). When good cause is shown to the contrary, a treating physician's opinion may be given less weight. 20 C.F.R. § 404.1527(d)(2). The ALJ may, however, discount a treating physician's opinion or report regarding an inability to work if it is unsupported by objective medical evidence or is wholly conclusory. Edwards v. Sullivan, 937 F.2d 580, 583 (11th Cir. 1991). Further, the Eleventh Circuit has concluded "good cause" exists when a treating physician's opinion is not bolstered by the evidence, is contrary to the evidence, or when the treating physician's opinion is inconsistent with his or her own medical records. Phillips v. Barnhart, 357 F.3d 1232, 1240-41 (11th Cir. 2004) (emphasis added). If an ALJ elects to disregard the medical opinion of a treating physician, then he or she must clearly articulate the reasons for so doing. Id. (emphasis added).
In this case, Dr. Emanuel Martinez, one of the three treating psychiatrists of record for Mrs. Trevizo, completed a Medical Assessment of Ability to Do Work Related Activities (Psychological) on August 2, 2007 at the request of Mrs. Trevizo's attorney (Tr. 561-64). This assessment included notations of extreme limitations in Mrs. Trevizo's ability to function, specifically noting she had rapid mood swings (Tr. 561-564). In considering this evidence as Dr. Martinez's expressed opinion of Mrs. Trevizo's medical condition, the ALJ found the opinion was inconsistent with treatment notes from Dr. Martinez (and by inference, from those of Dr. Martinez's staff), as well as the other medical evidence of record (Tr. 17-18). Further, the ALJ properly noted Mrs. Trevizo did not have the treating relationship directly with Dr. Martinez that would warrant deferential weight be given to his opinion. These two findings are supported by substantial evidence in the record.
It is established within the Eleventh Circuit that the opinion of a treating physician of record who has seen a patient on only one occasion is not given deferential weight. Gibson v. Heckler, 779 F.2d 619, 623 (11th Cir. 1986); see also McSwain v. Bowen, 814 F.2d 617, 619 (11th Cir. 1987). In this case, as discussed infra, it is unclear if Dr. Martinez ever saw Mrs. Trevizo face to face, or if he actually initiated treatment for her.
From February 1995 through October 1998, Mrs. Trevizo saw Dr. Thomas Wikstrom, an independent psychiatrist (Tr. 237-70), and a nurse practitioner at the Naval Hospital in Jacksonville (Tr. 271-294). Mrs. Trevizo's psychiatric symptoms waxed and waned throughout this period. She was found disabled under the Social Security Act as of October 1, 1998 by an ALJ's decision dated September 25, 2000 ( see Tr. 30-34).
In September 1999, Mrs. Trevizo began seeing Dr. Scott Findley, a psychiatrist associated with the Orange Park Medical Center ( see Tr. 295-317, 353-78, 383-422). Mrs. Trevizo treated with Dr. Findley until his death sometime in 2006 ( see Tr. 526, Dr. Findley's progress notes showing a change in Mrs. Trevizo's medication on April 12, 2006; Tr. 591, Plaintiff's testimony that Dr. Findley passed away around Thanksgiving 2006). Dr. Findley's most recent treatment notes indicated Mrs. Trevizo's depressive symptoms had decreased (Tr. 407), she had noted improvements in her mood, she was no longer crying during group therapy sessions, and she was excited to be discharged from the intensive outpatient program with a brighter affect and an optimistic mood (Tr. 410, 417).
The ALJ considered all of Mrs. Trevizo's progress notes of record, which included the notes of Dr. Findley from October 1999 until November of 2005 (Tr. 489-507, 509, 512). The notes provided by Dr. Findley support the ALJ's finding that Mrs. Trevizo's mental impairments had decreased medical severity. On four separate occasions, Dr. Findley indicated partial resolution of the major depression (Tr. 491, 503, 504, 506). Furthermore, Dr. Findley's notes indicate mood stabilization beginning in September of 2000 (Tr. 493; see also Tr. 494, 502, 505).
The ALJ's decision reflects his consideration of the notes from Dr. Martinez's office, which were signed by Susan Angel, ARNP (Tr. 18, 480-86, 514-24, 565-567, 569-577). On only two occasions, Dr. Martinez stamped Susan Angel's notes, thereby indicating he reviewed the diagnosis and recommendations, and he approved a medication change (Tr. 482-485, 576). Dr. Martinez reviewed the initial psychiatric/psychosocial assessment of Mrs. Trevizo on August 29, 2006 (Tr. 482-85) and the progress note on February 26, 2007 that showed a use of Xanax as medication (Tr. 576).
ARNP is an acronym for Advanced Registered Nurse Practitioner. Found at http://www.medilexicon.com/medicalabbreviations.php (last visited September 16, 2010).
At the initial office visit, Ms. Angel noted Mrs. Trevizo had a history of frequent mood changes (Tr. 482-485). In September 2006, Mrs. Trevizo expressed to Ms. Angel that she was no longer having mood swings (Tr. 481). In October of 2006, Mrs. Trevizo expressed to Ms. Angel that she was doing well (Tr. 481). In December of 2006, Ms. Angel's notes indicated that Mrs. Trevizo's moods were stable (Tr. 577). The following month, the notes indicated that Mrs. Trevizo's mood was okay (Tr. 577). In February 2007, Mrs. Trevizo indicated she was having mood swings (Tr. 576). She also told Ms. Angel that her mother had passed away and she was fighting with her husband (Tr. 576). Ms. Angel changed Mrs. Trevizo's medication during the February visit ( see Tr. 576).
In March and April of 2007, Mrs. Trevizo stated she was feeling better, but couldn't sleep (Tr. 573-574). In early May 2007, Mrs. Trevizo expressed to Ms. Angel that she was doing better and her mood was better, and that she was also sleeping at night (Tr. 573). Almost three weeks later, the notes indicate that Mrs. Trevizo's mood was "okay," although she physically felt bad (Tr. 572). Ms. Angel's notes also indicate that Mrs. Trevizo experienced medication side effects during the late May visit (Tr. 572). On June 21, 2007, one day after the hearing with the ALJ Thompson, Mrs. Trevizo was seen by the nurse practitioner who noted Plaintiff was not crying everyday, although her sleep patterns were irregular and she had little desire to engage in activities (Tr. 571). The last treatment note from July 31, 2007 contained the diagnosis that Mrs. Trevizo had a major depressive cycle, however Ms. Angel further characterized Plaintiff's mental state by finding "her manic[,] which is mainly dysphoric" (Tr. 566).
Dysphoria reflects a feeling of unpleasantness or discomfort. Thomas Lathrop Stedman, Stedman's Medical Dictionary 479 (William R. Hensyl et al. eds., 25th ed., 1990).
The ALJ determined that Mrs. Trevizo's testimony established that she rarely saw Dr. Martinez after her initial visit and that most of her meetings were with Susan Angel, ARNP (Tr. 18, 592-94). The ALJ explained in his decision that progress notes provided by Susan Angel, along with Mrs. Trevizo's activities of daily living, support a different conclusion than is reflected in Dr. Martinez's assessment (Tr. 18).
The Court's independent review of the record finds the progress notes in the record indicate Mrs. Trevizo saw only Susan Angel during her office visits (Tr. 481-485, 571-577).
After considering the all medical evidence, and the mental assessments of state agency consultants, the ALJ determined that the evidence supported finding Mrs. Trevizo's moods had stabilized and she had no physical limitations, but she did have the moderate mental limitations as noted in the residual functional capacity assessment (Tr. 18).
The ALJ gave some weight to the Physical Residual Functional Capacity Assessment completed by Dr. Janet Attlesey on October 11, 2006, which determined that Mrs. Trevizo had a capacity for a wide range of medium work activity (Tr. 472-479, Exhibit 24F), but noted that Plaintiff was not alleging disability due to any physical impairment (Tr. 18).
In this case, the ALJ Thompson explicitly rejected the Dr. Martinez's opinion of Mrs. Trevizo's abilities to perform work activities and stated his reasons for doing so (Tr. 18). First, he found Dr. Martinez's opinion was inconsistent with his own treatment notes, which presumably include the notes of nurse practitioner Susan Angel from Dr. Martinez's office (Tr. 17-18). As discussed above, this finding is supported by substantial evidence. Next, the ALJ noted the actual relationship between Dr. Martinez and Mrs. Trevizo was very limited according to Mrs. Trevizo's own testimony, which called into question Dr. Martinez's ability to complete the assessment form due to his rare interaction with Mrs. Trevizo (Tr. 17-18). This finding is supported by substantial evidence in the record. And finally, the ALJ noted his consideration of the other medical and opinion evidence of record, including that of the reviewing state agency psychologists, and found Dr. Martinez's opinion was not supported by this evidence (Tr. 18). This finding is also supported by substantial evidence in the record. To this Court it is clear the ALJ considered the record as a whole and had good cause to reject the opinion of Dr. Martinez as stated in the August 2, 2007 Medical Assessment of Ability to Do Work Related Activities (Psychological) (Tr. 561-64). See Phillips v. Barnhart, 357 F.3d 1232, 1241 (11th Cir. 2004) ; Edwards v. Sullivan, 937 F.2d 580, 583 (11th Cir. 1991).
In the alternative, Plaintiff's counsel argues that the ALJ erred by not requiring a consulting psychiatrist examine Mrs. Trevizo in order to properly develop the record ( see Doc. #13, P's Brief). More specifically, Plaintiff argues that if the Court decides to reject the opinion of a treating physician, i.e., that of Dr. Martinez, a consultative examination with a psychiatrist should have been ordered by the ALJ before making his decision ( see P's Brief at 7).
As in every case, the ALJ clearly has a duty to fully and fairly develop the record. Welch v. Bowen, 854 F.2d 436, 438 (11th Cir. 1988); Graham v. Apfel, 129 f.3d 1420, 1422 (11th Cir. 1997); Cowart v. Schweiker, 662 F.2d 731, 735 (11th Cir. 1981). That duty can extend to ordering additional medical tests and exams if a claimant's medical sources do not give sufficient medical evidence about an impairment to determine whether the claimant is disabled. 20 C.F.R. §§ 404.1512(f), 404.1517 (emphasis added). Evidentiary gaps prevent the ALJ from making an informed decision. Graham v. Apfel, 129 F.3d at 1422-23.
In the instant case, Mrs. Trevizo provided medical records dating from February 1995 (Tr. 270) through July 2007 (Tr. 566). During the year immediately prior to the ALJ's decision, Mrs. Trevizo supplied evidence of monthly visits with Susan Angel, ARNP (Tr. 481-485, 571-577). Contrary to an assertion otherwise, this record does not reflect evidentiary gaps that would render the ALJ as being ill informed and therefore unable to make a proper determination. Graham v. Apfel, 129 F.3d at 1422-23. The record contains evidence for and against Mrs. Trevizo's arguments, including the most recent medical note indicating a major depression cycle (Tr. 566). However, Mrs. Trevizo's medical sources have provided the ALJ with sufficient medical evidence to make a disability determination. Because the record provides sufficient medical evidence, it was not necessary for the ALJ to require a psychiatrist consult with Mrs. Trevizo in order to fully and fairly develop the record.
VI. CONCLUSION
The ALJ is required to weigh the evidence of record, and apply the applicable standards set forth in 20 C.F.R. § 404.1527(d). If an ALJ elects to disregard the medical opinion of a treating physician, then he or she must clearly articulate the reasons for so doing. See Phillips v. Barnhart, 357 F.3d at 1240-41.
In the instant case, the ALJ explicitly rejected Dr. Martinez's opinion after finding it was inconsistent with his own treatment notes and other evidence of record. The Court finds the notes of Dr. Findley and the notes of Susan Angel, ARNP, constitute substantial evidence in the record for ALJ Thompson to reject Dr. Martinez's opinion as found in the medical assessment identifying Mrs. Trevizo has having rapid mood swings and an extreme inability to function (Tr. 561-564). The ALJ has properly noted inconsistencies between Dr. Martinez's opinion and the notes provided by his office.
The Court further finds that the record contains sufficient medical evidence upon which the ALJ could make an informed decision regarding Plaintiff's disability determination. Graham v. Apfel, 129 F.3d at 1422-23.
Accordingly, for the reasons stated herein, the decision of the Commissioner is AFFIRMED pursuant to sentence four of 42 U.S.C. § 405(g).
The Clerk of the Court is directed to enter judgment consistent with this ruling and, thereafter, to close the file. Each party shall bear its own costs.
DONE AND ORDERED at Jacksonville, Florida this 29th day of September, 2010.
d) of Property (Servitudes) § 4.1).
Although we recognize that such evidence was not on file at the time the trial court entered its summary judgment, see Basin Credit Consultants, Inc. v. Obregon, 2 S.W.3d 372, 374 (Tex.App.-San Antonio 1999, pet. denied); Hussong v. Schwan's Sales Enters., Inc., 896 S.W.2d 320, 323 (Tex.App.-Houston [1st Dist.] 1995, no writ) (trial court may only consider the evidence on file at the time of the summary judgment hearing or filed thereafter and before judgment with permission of the court), we may consider the evidence adduced at trial if a trial court reconsiders its previous ruling or prematurely giants summary judgment, which can be rendered harmless by subsequent events. See Progressive County Mut. Ins. Co. v. Boyd, 177 S.W.3d 919, 921 (Tex. 2005) (concluding that any error committed by granting summary judgment on insurance bad-faith and extra-contractual claims was harmless because jury's finding in subsequent proceeding negated coverage, which was prerequisite for asserting bad-faith and extra-contractual claims); Martin v. Martin, Martin Richards. Inc., 989 S.W.2d 357, 359 (Tex. 1998) (holding that trial court rendered any error arising from its failure to give notice of submission date for motion for summary judgment harmless when i; considered nonmovant's response and reconfirmed its prior ruling on the motion); McAlester Fuel Co. v. Smith Intern., Inc., 257 S.W.3d 732, 736-37 (Tex.App.-Houston [1st Dist.] 2007, pet. denied) (holding that any error in trial court's grant of partial summary judgment on claims of breach of contract, negligence, negligent misrepresentation, and DTPA claims was harmless when the issue of whether defendant was shielded from liability under the terms and conditions contained on the back-side of the job tickets was fully litigated at trial).
Here, the trial court reserved any issues enjoining SHI's use of the easement for trial. After hearing the trial evidence, the court denied the injunction and seemingly reaffirmed its prior summary-judgment order:
With respect to the other road, to the Tinaja-China Road, the Court finds that way back before Mr. Boerschig came along, Mr. Poindexter and his company got in there. They began their operations. The same objection that was made by Mr. Boerschig was made at that time by the McCracken Ranch people about the use of the road, They got into some kind [of] dispute. They went through whatever procedure they went through, and I am not going to get into the details of that. But as a result of that, they eventually worked out an expressed agreement to be able to use that road where I am assuming those — that the Court finds, for the increased usage that, in fact, that he wanted to use it for. And so it's a bargained-for thing. And I am not going to grant any injunction against him using the Tinaja-China Road.
Therefore, we may consider the evidence adduced at trial in determining whether the trial court's premature grant of summary judgment was harmless.
Based on our discussion, we find no reversible error in the trial court's order granting summary judgment in favor of SHI. Accordingly, Issue Two is overruled.
ACCESS TO OTHER PROPERTIES
Boerschig's first issue complains of the trial court's determination that SHI did not use or allow others to use the express easement to access nonappurtenant properties. The trial court determined that there was not a real and concrete dispute about use of the express easement to access other properties and ruled that Boerschig was not entitled to a declaratory judgment on this ground, having only presented a theoretical injury.
Standard of Review
A declaratory judgment is available only if a justiciable controversy exists as to the rights and status of the parties and the controversy will be resolved by the declaration sought. Bonham State Bank v. Beadle, 907 S.W.2d 465, 467 (Tex. 1995). "To constitute a justiciable controversy, there must exist a real and substantial controversy involving genuine conflict of tangible interests and not merely a theoretical dispute." Id. (quoting Bexar-Medina-Atascosa Counties Water Control Improvement Dist. No. 1 v. Medina Lake Protection Ass'n, 640 S.W.2d 778, 779-80 (Tex.App.-San Antonio 1982, writ ref'd n.r.e.)). Although a justiciable controversy need not be a fully ripened cause of action, the fact situation must manifest the ripening seeds of a controversy to confer jurisdiction. Tex. Dep't of Pub. Safety v. Moore, 985 S.W.2d 149, 153-54 (Tex.App.-Austin 1998, no pet.) (citing Ainsworth v. Oil City Brass Works, 271 S.W.2d 754, 761 (Tex.Civ.App.-Beaumont 1954, no writ)). Ripening seeds of a controversy "appear where the claims of several parties are present and indicative of threatened litigation in the immediate future which seems unavoidable, even though the differences between such parties as to their legal rights have not reached the state of an actual controversy." Ainsworth, 271 S.W.2d at 761. However, a declaratory judgment action does not vest a court with the power to pass upon hypothetical or contingent situations, or to determine questions not then essential to the decision of an actual controversy, although such questions may in the future require adjudication. Empire Life Ins. Co. v. Moody, 584 S.W.2d 855, 858 (Tex. 1979); Tex. Health Care Info. Council v. Seton Health Plan,' Inc., 94 S.W.3d 841, 846 (Tex.App.-Austin 2002, pet. denied). Otherwise, the judgment amounts to no more than an advisory opinion, which the district court does not have power to render. Tex. Health Care, 94 S.W.3d at 846.
Application
Boerschig first alleges that SHI attempted to allow others to use the easement to access nonappurtenant properties. In this regard, Boerschig claims that SHI allowed the Harpers to use the road to access Rancho Quemado, but nothing in the record shows that the Harpers used the easement, and in fact, when the Harpers sold a portion of their ranch to SHI, the deed did not include any use of the easement, and the trial court found that SHI did not grant or give permission to the Harpers to use the easement. Boerschig also contends that SHI engaged the Texas Department of Parks and Wildlife (TDPW) for access to properties it owned south of Cienega Ranch by way of the easement if SHI succeeded in purchasing a portion of those properties; however, those talks fell through, and the trial court, after considering that evidence, determined that SHI did not provide or attempt to provide TDPW with employee or public access across the McCracken Ranch. In short, Boerschig appears to base his arguments on the possibility that, sometime in the future, SHI may allow others to use the easement to access nonappurtenant properties. These, however, are hypothetical situations that are not ripe for consideration in a declaratory-judgment action. See Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001) (because the plaintiffs were released from jail, they could not seek a declaratory judgment for a religious-education program at the Tarrant County Jail); City of Anson v. Harper, 216 S.W.3d 384, 394-95 (Tex.App.-Eastland 2006, no pet.) (because City had not received a requisite permit, plaintiffs declaratory judgment action was not ripe to the extent it sought an adjudication of the parties' rights if a permit was granted and the City proceeded with its landfill plans); Hill v. Sportsman's World Recreational Ass'n, Inc., No. 11-08-00189-CV, 2010 WL 428555, at *2 (Tex.App.-Eastland Feb. 4, 2010, no pet.) (mem. op., not designated for publication) (whether, sometime in the future, a multi-family development may be constructed in the plaintiffs' subdivision and that the owners of such living units will not be charged any assessment, thereby placing a disproportionate burden on the owners of the other lots, addresses a hypothetical situation and, thus, is not ripe for consideration in a declaratory judgment action of levying assessments against each residential lot).
Nevertheless, Boerschig also claims that SHI used the easement to access the Harper Ranch, a nonappurtenant property. Indeed, Poindexter expressly testified that he uses the express easement to travel from Cibolo Creek Ranch to the Harper Ranch. But a grantee may not use an easement to access nonappurtenant properties that he owns, that is, to access properties adjacent to the dominant estate but not adjacent to the servient estate. Storms v. Tuck, 579 S.W.2d 447, 451 (Tex. 1979); see also Bickler v. Bickler, 403 S.W.2d 354, 359 (Tex. 1966) ("Where, in connection with a transfer of property, an easement is granted for the benefit of that property over lands of the grantor, the easement is presumed to be appurtenant to the granted premises, and in the absence of words creating a more extended right the grantee or his successor in interest is not entitled to use the easement for the benefit of other premises owned by himself or another."). Thus, SHI may not use the easement to access nonappurtenant properties. And logically, if SHI cannot use the easement in this way, neither can its invitees. The trial court should have entered a declaratory judgment in favor of Boerschig on this ground. Accordingly, Issue One is sustained.
PRESCRIPTIVE EASEMENT
In his third issue, Boerschig challenges the sufficiency of the evidence to support the trial court's determination that SHI obtained a prescriptive easement over the disputed section of the Morita Road located on his property. After reviewing the evidence, we find sufficient evidence to support the trial court's ruling.
Standard of Review
A trial court's findings of fact in a bench trial "have the same force and dignity as a jury's verdict upon questions." Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991); Askcraft v. Lookadoo, 952 S.W.2d 907, 910 (Tex.App.-Dallas 1997, writ denied) (en banc). Because legal and factual sufficiency of the evidence standards of review govern appeals of non-jury trials on the merits, it is incumbent upon the appealing party to attack the findings by appropriate legal and factual sufficiency points of error. Carrasco v. Stewart, 224 S.W.3d 363, 366-67 (Tex.App.-El Paso 2006, no pet.). "When a party appeals from a non-jury trial, it must complain of specific findings and conclusions of the trial court, because a general complaint against the trial court's judgment does not present a justiciable question." Id. at 367.
In conducting a legal-sufficiency review, we consider evidence in the light most favorable to the trial court's findings and indulge every reasonable inference that would support them. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). We credit favorable evidence if a reasonable fact finder could and disregard contrary evidence unless a reasonable fact finder could not. Id., at 827. However, in a factual-sufficiency review, we consider and weigh all of the evidence and will "set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust." Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). In conducting our reviews, we are mindful that the trier of fact is the sole judge of the credibility of the witnesses and the weight to give their testimony, and that it is within his exclusive province to resolve any conflicts in the evidence. City of Keller, 168 S.W.3d at 819; Precision Homes, Inc. v. Cooper, 671 S.W.2d 924, 929 (Tex. App.-Houston [14th Dist.] 1984, writ ref'd n.r.e.).
Applicable Law
An easement by prescription rests on the claimant's adverse actions under color of right. Allen v. Allen, 280 S.W.3d 366, 377 (Tex.App.-Amarillo 2008, pet. denied); Scott v. Cannon, 959 S.W.2d 712, 721 (Tex.App.-Austin 1998, pet. denied). A person acquires a prescriptive easement by the open, notorious, continuous, exclusive, and adverse use of someone else's land for ten years or more. See Brooks v. Jones, 578 S.W.2d 669, 673 (Tex. 1979). The party claiming the existence of a prescriptive easement has the burden of proof to establish each element by a preponderance of the evidence. Tiller v. Lake Alexander Properties, Ltd., 96 S.W.3d 617, 624 (Tex.App.-Texarkana 2002, no pet.) (citing Brooks, 578 S.W.2d at 674). Here, Boerschig only contests the open, exclusive, adverse, and ten-year period elements, and thus, we restrict our review to those elements only.
Openness
In challenging the openness element, Boerschig attacks the trial court's finding that the Greenwoods used the road from the 1950s until March of 1992. According to Boerschig, the use could not have been open because the land was wild, unenclosed, unimproved, and vacant. But whether the area was desolate does not equate to a finding that the use of the road itself was not open. Indeed, our focus is on whether the "evidence established a long-standing, open, unmolested, and continuous use of the roadway" in excess of the ten years necessary to acquire a prescriptive easement. Johnson v. Dale, 835 S.W.2d 216, 219 (Tex.App.-Waco 1992, no pet.) (emphasis added).
In Johnson, the court found open and continuous use when the evidence showed that the dominant estate's owners, nesters in the area, and the public used the road without permission to reach a public highway from the 1930s until 1989. Id. at 218-19. We find similar open use here. The Greenwoods openly and continuously used the road from the 1950s until their property was sold to SHI in 1992, using the road to haul salt and feed by iron wheel wagon and later by pickup truck. After selling the property to SHI, SHI's employees daily used the road until 2002. Moreover, during this period of use, the Greenwoods and SHI maintained and improved the road. We believe that is sufficient evidence to support the trial court's finding that the use of the Morita Road was open.
Exclusive
Boerschig next challenges the exclusivity element, contending that the claimants' mere subjective beliefs that they owned the road was insufficient to establish exclusive use. However, an adverse possessor's claim cannot be defeated by lack of knowledge of the deficiency in record title or a realization that there may be other claimants to the land when his possession and use is actual, visible, and exclusive. Calfee v. Duke, 544 S.W.2d 640, 642 (Tex. 1976); Julien v. Baker, 758 S.W.2d 873, 877 (Tex.App.-Houston [14th Dist.] 1988, writ denied) (appellee's claim of right is not defeated by her lack of knowledge of the error in the survey when her possession and use was actual and visible); Boyle v. Burk, 749 S.W.2d 264, 267 (Tex.App.-Fort Worth 1988, writ denied) (by entering the lot with the intent to claim it as his own and by maintaining the lot openly, possessor's claim of right not defeated even though the disputed strip of land was not part of his property). Thus, whether the Greenwoods or SHI actually owned the disputed area is inapplicable where, as more fully discussed below, they used and maintained the road to the exclusion of others.
Boerschig argues that the use was not exclusive, noting that Ted Harper, Frances' husband, testified that others used the Morita Road, that anybody who needed to use the road would have been able to use it, and that the road was too remote to notice whether anyone else was using the road. However, other testimony established that only the Greenwood family used the road from 1950 to 1992, and that SHI used the road exclusively from 1992 until 2002. Prior to SHI's purchase, if anyone else used the road without their permission, the Greenwoods would "halt them and question them and ask them why and put them off of it. . . ." And after SHI purchased the property, Boerschig asked for permission to use the road. The trial court, in considering all the evidence, was free to resolve any conflicts and choose which witnesses to believe. City of Keller, 168 S.W.3d at 819-20. By choosing to disbelieve that portion of Harper's testimony and to believe other evidence presented in the record, we defer to the trial court's determination of credibility and the resolution of conflicting evidence, and therefore, we cannot say, based on the evidence presented, that insufficient evidence supports the trial court's finding of exclusive use.
Adverse
In challenging the adversity element, Boerschig argues that there was no evidence that the claimant's usage put the true owner on notice that a hostile claim was asserted, nor was there any evidence of adverse usage. "The hostile and adverse character of the use necessary to establish an easement by prescription is the same as that which is necessary to establish title by adverse possession." Mack v. Landry, 22 S.W.3d 524, 531 (Tex. App.-Houston [14th Dist] 2000, no pet.) ( citing Othen v. Rosier, 148 Tex. 485, 226 S.W.2d 622, 626 (1950)). In determining whether a claim is hostile, we consider "whether the adverse possessor's use, occupancy, and possession of the land is of such nature and character as to notify the true owner that the claimant is asserting a hostile claim to the land." Mack, 22 S.W.3d at 531. Hostile use, however, "does not require an intention to dispossess the rightful owner, or even know that there is one." Tran v. Macho, 213 S.W.3d 913, 915 (Tex. 2006).
The testimony established that parts of the Morita Road were visible from several vantage points from the McCracken Ranch. After the Greenwoods bought the ranch in the 1950s, only the Greenwood family used the Morita Road because "no one else dared to come in there" unless they first received the Greenwood's permission. Further, the road was not only maintained exclusively by the Greenwoods, but they also enclosed the road with a fence on one side and a gate on one end. If anyone appeared on the road without permission, the Greenwoods would stop and remove them from the road. After SHI bought the ranch, SHI exclusively improved and maintained the road. This was sufficient evidence for the trial court to conclude that the use was adverse. See Cherokee Water Co. v. Freeman, 145 S.W.3d 809, 818 (Tex.App.-Texarkana 2004, pet. denied); Nickels v. Casburg, No. 03-05-00027-CV, 2009 WL 1708830, at *15-16 (Tex.App.-Austin June 18, 2009, pet. denied) (mem. op., not designated for publication) (cases finding sufficient evidence to support prescriptive easement when claimants consistently used and maintained disputed area such that owner's predecessor should have noticed that a hostile claim was being asserted).
Ten Years
Finally, Boerschig contests the requisite limitations period. According to Boerschig, because he filed the suit three days prior to SHI's ownership of the property for ten years, SHI failed to meet the requisite ten-year limitations requirement. However, adverse possession does not have to continue in the same person to satisfy the requisite limitations period. Masonic Bldg. Assn. of Houston, Inc. v. McWhorter, 177 S.W.3d 465, 472 (Tex.App.-Houston [1st Dist.] 2005, no pet.); Parker v. McGinnes, 842 S.W.2d 357, 360 (Tex.App.-Houston [1st Dist.] 1992, writ denied). Rather, the ten-year requirement may be established by tacking successive interests if there is "privity of estate between each holder and his successor." TEX. CIV. PRAC. REM. CODE ANN. § 16.023 (Vernon 2002); First Nat. Bank of Marshall v. Beavers, 602 S.W.2d 327, 329 (Tex.Civ.App.-Texarkana 1980, no writ) (permitting tacking for establishing a prescriptive easement). As noted previously, the Greenwoods adversely used the road from the 1950s until SHI purchased the ranch in 1992. Thus, SHI was entitled to tack the Greenwoods' claim onto its usage to satisfy the requisite limitations period. Beavers, 602 S.W.2d at 329. The trial court's findings that SHI met the ten-year period is sufficiently satisfied by the record.
Having concluded that there was legally and factually sufficient evidence presented to establish the open, exclusive, and adverse use of the Morita Road for more than ten years, SHI obtained a prescriptive easement across the disputed area of the road. Accordingly, Issue Three is overruled.
FENCE TRESPASS
Boerschig's fourth issue contends that the trial court erred by failing to enjoin the fence from trespassing onto his land. The trial court found that: (1) the fence was already on the McCracken Ranch when Boerschig purchased the ranch and had been on the ranch for well more than four years; (2) the fence had not caused any new injury to Boerschig since his purchase; (3) Boerschig did not have standing to assert a trespass claim; and (4) any trespass claim is barred by limitations. We address standing first.
Texas courts have held that "[w]here injury to land results . . . the right of action for all the damages resulting from the injury accrues to the owner of the land at the time the thing that causes the injury commences to affect the land." Vann v. Bowie Sewerage Co., 127 Tex. 97, 90 S.W.2d 561, 562 (1936); Senn v. Texaco, Inc., 55 S.W.3d 222, 225 (Tex.App.-Eastland 2001, pet. denied). "The right to sue for the injury is a personal right that belongs to the person who owns the property at the time of the injury." Exxon Corp. v. Fluff, 94 S.W.3d 22, 27 (Tex.App.-Tyler 2002, pet. denied); Senn, 55 S.W.3d at 225-26; Lay v. Aetna Ins. Co., 599 S.W.2d 684, 686 (Tex.Civ.App.-Austin 1980, writ ref d n.r.e.); City of Dallas v. Winans, 262 S.W.2d 256, 259 (Tex.Civ.App.-Dallas 1953, no writ); Williams v. State, 177 S.W.2d 106, 109 (Tex.Civ.App.-Waco 1943, writ ref'd).
Trespass is an injury to land caused by one not rightfully in possession. See R.C. Bowen Estate v. Continental Trailways, Inc., 152 Tex. 260, 256 S.W.2d 71, 72 (1953); Hexamer v. Topographic Land Surveyors, No. 05-97-00108-CV, 1999 WL 114390, at *2 (Tex.App.-Dallas Mar. 4, 1999, no pet.) (op., not designated for publication).
Here, Boerschig was not the owner of the property when the fence was installed; however, he relies on the discovery rule to confer standing. The discovery rule is a narrow exception applicable only to defeat the requisite statute of limitations, that is, the rule operates to toll the limitations period when an injury is both inherently undiscoverable and objectively verifiable. Schneider Nat'l Carriers, Inc. v. Bates, 147 S.W.3d 264, 270 (Tex. 2004). The discovery rule is not applicable in cases where the subsequent property owner lacks standing to sue for an injury to land that occurred prior to passage of title. Senn, 55 S.W.3d at 225. Absent any evidence showing Boerschig bargained for an assignment of the prior owner's possible causes of action for injuries to the land that occurred before his purchase, he cannot rely on the discovery rule to defeat his lack of standing. Id.; Vann, 90 S.W.2d at 562. Because Boerschig did not own the property when the injury occurred, he lacks standing, and the trial court did not err by failing to enjoin the fence from encroaching on Boerschig's land. Issue Four is overruled.
ATTORNEY'S FEES
Boerschig's final issue contests the award of attorney's fees in the amount of $49,320. According to Boerschig, counsel only testified to $37,403.71 in fees, and therefore, Boerschig concludes that the trial court's award is not supported by sufficient evidence. Boerschig also contends that should he prevail on any issues before this Court, we should reverse the award for reconsideration in light of our opinion.
Standard of Review
The Texas Uniform Declaratory Judgments Act allows the trial court discretion to award reasonable and necessary attorney's fees that are equitable and just. See TEX. CIV. PRAC. REM. CODE ANN. § 37.009 (Vernon 2008); Elijah Ragira/VIP Lodging Group, Inc. v. VIP Lodging Group, Inc/Elijah Ragira, 301 S.W.3d 747, 757 (Tex.App.-El Paso 2009, pet. denied); Murphy v. Long, 170 S.W.3d 621, 622-23 (Tex.App.-El Paso 2005, pet. denied). Whether the fees are reasonable and necessary are questions of fact, whereas whether the fees are equitable and just are questions of law. Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998). Further, the award is not dependent on a finding that a party prevailed in the action. Id. at 20; Barshop v. Medina County Underground Water Conservation District, 925 S.W.2d 618, 638 (Tex. 1996).
We review a trial court's decision to grant or deny attorney's fees for an abuse of discretion. See Bocquet, 972 S.W.2d at 21; EMC Mortgage Corp. v. Davis, 167 S.W.3d 406, 418 (Tex.App.-Austin 2005, pet. denied). In so doing, we view the evidence in the light most favorable to the trial court's ruling and indulge every presumption in its favor. Aquaduct, L.L.C. v. McElhenie, 116 S.W.3d 438, 444 (Tex.App.-Houston [14th Dist.] 2003, no pet.); Phillips Akers, P.C. v. Cornwell, 927 S.W.2d 276, 279 (Tex.App.-Houston [1st Dist.] 1996, no writ). We will only find an abuse of discretion when the trial court's decision is arbitrary, unreasonable, and without reference to guiding principles. Goode v. Shoukfeh, 943 S.W.2d 441, 446 (Tex. 1997).
Application
Here, counsel testified that his total fees incurred in the case was $65,084.27. Of that amount, 40 percent, or $26,033.71, was incurred in pursuing and defending the express easement for declaratory judgment. Approximately $37,900 was incurred for trial expenses after summary judgments were granted and denied. And of that amount, 40 percent, or $15,160, was spent prosecuting the prescriptive easement, and thirty percent, or $11,370, was spent prosecuting access to other properties across the express easement for declaratory judgment. On cross-examination, counsel, somewhat confused, stated that he was asking the court for $26,033 and $11,370 for trial expenses but then indicated that a total of $37,012.21 was incorrect. The court recognized counsel's fallacy and allowed counsel the opportunity to examine his records. Counsel then disclosed that there was an additional $28,000 that was billed but had not been disclosed.
Recognizing that the trial court may resolve conflicting testimony on fees, we discern no abuse of discretion in awarding $49,320, which was less than the total of what the evidence allowed as $37,403.71 related to prosecuting and defending the declaratory judgment actions on the express easement, and $15,160 was spent prosecuting the prescriptive easement. See Estate of Degley v. Vega, 797 S.W.2d 299, 304 (Tex.App.-Corpus Christi 1990, no writ); Texas Mut. Ins. Co. v. Durst, No. 04-07-00862-CV, 2009 WL 490056, at *6 (Tex.App.-San Antonio Feb. 25, 2009, no pet.) (mem. op., not designated for publication) (when presented with conflicting evidence, trial judge, as the fact finder, was within his discretion in awarding the attorneys' fees in the manner and amount in which he did). Therefore, we conclude sufficient evidence supports the trial court's award of attorney's fees.
Nevertheless, Boerschig contends we should remand the case for reconsideration of attorney's fees in light of our disposition under Issue One. Although a party need not prevail to recover attorney's fees under the Act, see Bocquet, 972 S.W.2d at 20, after a declaratory judgment is reversed on appeal, an award of attorney's fees may no longer be equitable and just. See SAVA gumarska in kemijska industria d.d. v. Advanced Polymer Sci., Inc., 128 S.W.3d 304, 323 (Tex.App.-Dallas 2004, no pet.); Fitzgerald v. Antoine Nat'l Bank, 980 S.W.2d 228, 232 (Tex.App.-Houston [14th Dist.] 1998, no pet.). Given our disposition of Issue One, we remand the award of attorney's fees to the trial court for its reconsideration in light of our opinion.
Given the wide discretion afforded to the trial court in awarding attorney's fees under the Act, there would certainly be no abuse of discretion if the trial court, on remand, refused any award of attorney's fees to Boerschig and instead, decided to award SHI the same amount in attorney's fees even though SHI did not prevail on the declaratory judgment action as set out in this opinion. See Bocquet, 972 S.W.2d at 20.
CONCLUSION
Having sustained Boerschig's first issue, we reverse the trial court's order refusing a declaratory judgment on Boerschig's claim concerning SHI's use of the easement to access nonappurtenant properties and render a declaratory judgment proscribing such use. In addition, we remand the case to the trial court to reconsider the award of attorney's fees in light of our decision. We affirm the trial court's judgment in all other respects.