Gary v. Astrue

Filing 20

MEMORANDUM OPINION that this case will be reversed and remanded to the Commissioner for further proceedings consistent with this opinion. Signed by Honorable Charles S. Coody on 9/22/09. (br, )

IN THE DISTRICT COURT OF THE UNITED STATES F O R THE MIDDLE DISTRICT OF ALABAMA S O U T H E R N DIVISION S U S IE A. GARY, P l a in tif f , v. M IC H A E L J. ASTRUE, C o m m is s io n e r of Social Security, D e f e n d a n t. ) ) ) ) ) ) ) ) ) )

C I V IL ACTION NO. 1:08cv411-CSC (WO)

M E M O R A N D U M OPINION I . Introduction T h e plaintiff, Susie Gary ("Gary"), applied for disability insurance benefits pursuant to Title II of the Social Security Act, 42 U.S.C. §§ 401 et seq., and supplemental security in c o m e benefits under Title XVI of the Social Security Act, 42 U.S.C. § 1381 et seq., a lle g in g that she was unable to work because of a disability. Her application was denied at the initial administrative level. The plaintiff then requested and received a hearing before a n Administrative Law Judge ("ALJ"). Following the hearing, the ALJ also denied the c la im . The Appeals Council rejected a subsequent request for review. The ALJ's decision c o n se q u e n tly became the final decision of the Commissioner of Social Security (C o m m issio n er).1 See Chester v. Bowen, 792 F.2d 129, 131 (11 th Cir. 1986). The case is n o w before the court for review pursuant to 42 U.S.C. §§ 405 (g) and 1631(c)(3). Pursuant
Pursuant to the Social Security Independence and Program Improvements Act of 1994, Pub.L. No. 103-296, 108 Stat. 1464, the functions of the Secretary of Health and Human Services with respect to Social Security matters were transferred to the Commissioner of Social Security.
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to 28 U.S.C. § 636(c)(1) and M.D. Ala. LR 73.1, the parties have consented to the United S ta te s Magistrate Judge conducting all proceedings in this case and ordering the entry of final ju d g m e n t . Based on the court's review of the record in this case and the briefs of the parties, th e court concludes that the decision of the Commissioner should be reversed and this case r e m a n d e d to the Commissioner for further proceedings. I I . Standard of Review U n d e r 42 U.S.C. § 423(d)(1)(A), a person is entitled to disability benefits when the p e rso n is unable to e n g a g e in any substantial gainful activity by reason of any medically d e ter m in a b le 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 o f not less than 12 months . . . To make this determination,2 the Commissioner employs a five-step, sequential e v a lu a tio n process. See 20 C.F.R. §§ 404.1520, 416.920. (1 ) Is the person presently unemployed? (2 ) Is the person's impairment severe? (3 ) Does the person's impairment meet or equal one of the specific im p a irm e n ts set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1? (4 ) Is the person unable to perform his or her former occupation? (5 ) Is the person unable to perform any other work within the economy? A n affirmative answer to any of the above questions leads either to the next q u e stio n , or, on steps three and five, to a finding of disability. A negative a n sw e r to any question, other than step three, leads to a determination of "not d is a b le d ."

A "physical or mental impairment" is one resulting from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.

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M c D a n ie l v. Bowen, 800 F.2d 1026, 1030 (11 th Cir. 1986).3 T h e standard of review of the Commissioner's decision is a limited one. This court m u s t find the Commissioner's decision conclusive if it is supported by substantial evidence. 4 2 U.S.C. § 405(g); Graham v. Apfel, 129 F.3d 1420, 1422 (11 th Cir. 1997). "Substantial e v id e n c e is more than a scintilla, but less than a preponderance. It is such relevant evidence a s a reasonable person would accept as adequate to support a conclusion." Richardson v. P e ra le s, 402 U.S. 389, 401 (1971). A reviewing court may not look only to those parts of th e record which support the decision of the ALJ but instead must view the record in its e n t ir e ty and take account of evidence which detracts from the evidence relied on by the ALJ. H ills m a n v. Bowen, 804 F.2d 1179 (11 th Cir. 1986). [ T h e court must] . . . scrutinize the record in its entirety to determine the re a so n a b le n e ss of the [Commissioner's] . . . factual findings . . . No similar p r e s u m p t io n of validity attaches to the [Commissioner's] . . . legal conclusions, in c lu d in g determination of the proper standards to be applied in evaluating c la im s . W a lk e r v. Bowen, 826 F.2d 996, 999 (11 th Cir. 1987). I I I . The Issues A . Introduction. Gary was 37 years old at the time she applied for disability b en ef its, (R. 67), and 39 years old at the time of the first hearing before the ALJ. (R. 547).

McDaniel v. Bowen, 800 F.2d 1026 (11th Cir. 1986) is a supplemental security income case (SSI). The same sequence applies to disability insurance benefits. Cases arising under Title II are appropriately cited as authority in Title XVI cases. See e.g. Ware v. Schweiker, 651 F.2d 408 (5th Cir. 1981) (Unit A).

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S h e completed the eleventh grade.4 (Id.). Following the hearing, the ALJ concluded that th e plaintiff has severe impairments of carpal tunnel syndrome, diabetes, and arthritis.5 (R. 1 9 ). The ALJ concluded that Gary could not perform her past relevant work as a sewing m a c h in e operator and nursing home cook. (R. 22). However, the ALJ concluded that b e c au s e the plaintiff has the residual functional capacity to perform sedentary work, and that th e re are jobs that exist in the national economy that she could perform, Gary is not disabled. (R. 22-23). B. Plaintiff's Claims. Gary presents five issues for the Court's review. As stated by G a r y, they are as follows: 1. W h eth e r the ALJ erred by failing to properly evaluate Ms. Gary's re s id u a l functional capacity. W h e th e r the ALJ erred by failing to properly apply the pain standard. W h e th e r the ALJ committed reversible error by failing to pose a c o m p lete hypothetical to the vocational expert. W h e th e r the ALJ erred by failing to properly consider Ms. Gary's depression. W h e th e r the ALJ erred by misclassifying Ms. Gary's education.

2. 3.

4. 5.

(P l's Br. at 1).

Gary alleges that the ALJ erred when he found that Gary has "at least a high school education," (R. 22), because she alleges that she only completed the eleventh grade. (R. 89). Even if the court were to conclude that the ALJ erred, Gary has failed to demonstrate that she was prejudiced by that error. Consequently, the court concludes that any error regarding Gary's educational background is immaterial.
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The ALJ does not identify the location of Gary's arthritis.

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I V . Discussion T h e plaintiff raises several issues and arguments related to this court's ultimate in q u iry of whether the Commissioner's disability decision is supported by the proper legal s ta n d a rd s and substantial evidence. See Bridges v. Bowen, 815 F.2d 622 (11 th Cir. 1987). H o w e v e r, the court pretermits discussion of the plaintiff's specific arguments because the c o u r t concludes that the ALJ erred as a matter of law at step two of the sequential analysis. A . Obesity. The plaintiff argues that the ALJ failed to properly consider her obesity, m ig ra in e headaches and depression.6 With respect to her obesity, the plaintiff argues as f o llo w s . The ALJ also failed to properly consider Ms. Gary's obesity. Ms. Gary te s tif ie d that she is five feet tall and 195 pounds. (R. 569). Her physicians h a v e diagnosed her with obesity. (R. 271, 284, 347, 486). Despite this ev id en ce of obesity, the ALJ's decision does not mention obesity. (R. 14-24). * * *

In the case at bar, the ALJ did not mention Ms. Gary's obesity. (R. 19-14). He d id not explain how he reach (sic) a conclusion on whether Ms. Gary's obesity c a u se d any physical or mental limitations. Therefore this case should be re m a n d e d for proper consideration of Ms. Gary's obesity. (P l's Br. at 7). Beyond this generalized statement about her obesity, Gary alleges no facts and points to no evidence in the record to support her position that her obesity places significant

The plaintiff also argues that the ALJ failed to properly consider her diabetic retinopathy. While the plaintiff has complained of blurred vision, no physician has diagnosed Gary with diabetic retinopathy. However, on remand, the Commissioner is encouraged to consider whether Ms. Gary's diabetes has progressed to the point of causing retinopathy.

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lim ita tio n s on her ability to work. The burden is on the plaintiff to demonstrate that the C o m m is s io n e r's decision is not supported by substantial evidence, and the argument of c o u n s e l is simply insufficient to meet this burden. See generally Road Sprinkler Fitters L o c a l Union No. 669 v. Indep. Sprinkler Corp., 10 F.3d 1563, 1568 (11 th Cir. 1994) (It is not the court's responsibility to seek out facts in support of the plaintiff's position.) More im portantly, however, the objective medical evidence of record does not demonstrate that any tre a tin g or consultative physicians placed limitations on Gary due to her obesity. C o n s e q u e n tly, she is entitled to no relief on this basis. B. Migraine Headaches and Depression. However, with respect to her migraine h e a d ac h e s and depression, the court concludes that the ALJ erred at step two of the se q u e n tial analysis because he failed to properly consider whether these impairments c o n stitu te severe impairments. It follows, therefore, that his determination that the plaintiff is not disabled is not supported by substantial evidence. In her initial disability report dated March 11, 2000, the plaintiff complains about h e a d a c h e s for which she takes medication.7 (R. 88, 92). On December 30, 2003, Gary c o m p la in e d about constant headaches, three times a day, even though she was taking Lortab an d Tylenol. (R. 297). During her consultative examination on March 29, 2004, Gary c o m p la in e d of generalized headaches. (R. 283).

In April 1999, Gary complained to Dr. Hollobaugh of headaches "mostly at night." (R. 230). Dr. Hollobaugh prescribed Lortab. (Id.). She continued to complain of headaches, and in July, Dr. Hollobaugh prescribed Elavil. (Id.)

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O n February 5, 2005, Gary presented to the emergency room at Dale Medical Center c o m p la in in g of headaches. (R. 386). She was diagnosed with migraine headaches and p resc rib ed medication. (R. 388). On February 22, 2005, Dr. Hassan Kesserwani, a board c e rtif ie d neurologist, diagnosed Gary with migraine headaches and recommended Topamax. (R . 399). Dr. Kesserwani was still treating her headaches with Topamax in May 2005. (R. 1 8 9 , 199, 428). Finally, during the supplemental administrative hearing in 2007, Gary te stif ie d that she suffers from headaches and that she takes pain pills to manage the pain.8 (R . 581-82). Q: A: A L J: D o you have any problems with headaches, and if so, what? Y e s , ma'am. A ll right, counselor, now you're leading, we don't need to go th ere . If she has the problem, she'll tell you. You're not, she's n o t going to answer your question. Try again. Don't lead.

B Y ATTORNEY: Q: W h a t problems do you have? Just kind of start at your head and c o m e down. Think of everything that's wrong with you. W ith my head, my left side of my head hurts all the time where I can't stand the light, being in a noisy room, and it lasts for a b o u t two, maybe three hours. And then I get so like twice a d a y, then ­ W h a t brings that on?

A:

Q:

The medical records demonstrate that, over the years, Gary has been prescribed Lortab, Lidoderm patches, Topomax, Tramadol, Propoxy, Oxycodone, Ibuprofen, generic Darvocet, Robaxin, Flexeril, Demerol, and Phenergam for pain, although not necessarily prescribed for her headaches. (R. 163, 182, 20204, 207, 209-10, 230, 232, 282, 290, 316, 323, 388, 399, 438, 451, 483).

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A: Q: A:

S tre ss mainly, I believe. That's what I am thinking. W h a t relieves it, if anything? T h e medication I am taking. Pain pills or whatever I take, one of th o s e and go lay in a dark room.

(R . 581-82). A lth o u g h the record is replete with references to migraine headaches, the ALJ simply ig n o r e d evidence that Gary suffers from migraine headaches. M o re o v e r, Dr. Chandler diagnosed Gary as suffering from depression and prescribed L e x a p ro in November 2005. (R. 204, 415). Pharmacy records demonstrate that as late as D e c em b e r 18, 2006, Gary was still taking Lexapro. (R. 212-213). At the initial

a d m in is tra tiv e hearing on December 21, 2006, the ALJ was informed that Gary was being tre a te d for depression but at that time, he declined to send her for a psychological e v a l u a t io n .9 (R. 564-65). In this circuit, depression can be a non-exertional restriction on a n individual's ability to work. See Pendley v. Heckler, 767 F.2d 1561, 1563 (11 th Cir. 1985) (re v e rs in g ALJ's decision for failure to incorporate severe impairments of anxiety and d e p re ss io n into hypothetical to vocational expert). In Pendley, the ALJ did not ask the v o c a tio n a l expert to assume the claimant's anxiety or depression, both of which he found to b e severe impairments, in his hypothetical question. The Eleventh Circuit found that the A L J 's decision was unsupported by substantial evidence and thus, the Commissioner had

The court is not suggesting that the mere fact that Gary is taking Lexapro requires that she be sent for a consultative psychological evaluation. However, the ALJ does need to address the severity of the alleged impairment, as well as its effect on Gary's ability to work.

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f a ile d to meet its burden of showing the plaintiff could perform other work in the national e c o n o m y. The Eleventh Circuit, concluding the "misuse of the expert's testimony alone w a rr a n t[ e d ] reversal," remanded the case. Id. at 1563. The ALJ does not mention Gary's migraine headaches or her depression in his d is a b ility determination, and thus, he makes no findings about whether her migraine h e a d a c h e s or depression constitute severe impairments. The severity step is a threshold in q u iry which allows only "claims based on the most trivial impairment to be rejected." M c D a n ie l, 800 F.2d at 1031. Indeed, a severe impairment is one that is more than "a slight a b n o rm a lity or combination of slight abnormalities which would have no more than a m in im a l effect on an individual's ability to work." Bowen v. Yuckert, 482 U.S. 137, 154 n. 1 2 (1987) (citing with approval Social Security Ruling 85-28 at 37a). A physical or mental impairment is defined as "an impairment that results from a n a to m ic a l, physiological or psychological abnormalities which are demonstrable by m e d ic a lly acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. §

1 3 8 2 c (a )(3 )(c ). The plaintiff has the "burden of showing that [her] impairments are `severe' w ith in the meaning of the Act." McDaniel, 800 F.2d at 1030-31. Once the plaintiff e sta b lis h e s that she suffers from a severe impairment, the ALJ is not entitled to ignore that e v id e n c e . Furthermore, because the ALJ simply ignored evidence that Gary suffers from m ig r a in e headaches and depression, he could not have properly consider the effects of these

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im p a irm e n ts on Gary's ability to work. Consequently, the court is unable to determine w h e th e r the ALJ's conclusion that Gary is not disabled is supported by substantial evidence. In fact, that conclusion is contrary to the evidence. It is plain that the plaintiff suffers from n o n - p h ys i c a l impairments. What is not plain is the effect of those impairments. "`Even a " m ild " mental impairment may "prevent [a] claimant from engaging in the full range of jobs c o n te m p la te d by the exertional category for which the claimant otherwise qualifies.'" Allen v . Sullivan, 880 F.2d 1200, at 1202 (11 th Cir. 1989). F o r these reasons, the court concludes that the Commissioner erred as a matter of law, a n d that the case should be remanded for further proceedings regarding the severity of the p la in tif f 's migraine headaches and depression, and their effect on her ability to work. The A L J must consider every impairment alleged by the plaintiff and determine whether the a lle g e d impairments are sufficiently severe ­ either singly or in combination ­ to create a d is a b ility. See Gibson v. Heckler, 779 F.2d 619, 623 (11 th Cir. 1986). All of the plaintiff's im p a irm e n ts must be considered in combination even when the impairments considered s e p a ra te ly are not severe. Hudson v. Heckler, 755 F.2d 781, 785 (11 th Cir. 1985). In light of t h e ALJ's failure to fully and fairly consider the evidence in the record of the plaintiff's m ig ra in e headaches and depression, the court concludes that the ALJ failed to meet his b u rd e n in this regard. As a result of his failure to consider the plaintiff's impairments in c o m b in a tio n , doubt is necessarily cast upon the ALJ's conclusion that the plaintiff is not d is a b le d .

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V . Conclusion A c c o rd in g ly, this case will be reversed and remanded to the Commissioner for further p ro c e ed in g s consistent with this opinion. A separate order will be entered. D o n e this 22 n d day of September, 2009.

/s/Charles S. Coody CHARLES S. COODY U N IT E D STATES MAGISTRATE JUDGE

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