Hood v. Astrue

Filing 21

MEMORANDUM OPINION. A separate order will be entered. Signed by Honorable Charles S. Coody on 5/28/2010. (cb, )

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 T A M M Y D. HOOD, P l a i n t if f , v. M IC H A E L J. ASTRUE, C O M M IS S IO N E R OF SOCIAL S E C U R IT Y , D e fe n d a n t. ) ) ) ) ) ) ) ) ) ) )

C I V IL ACTION NO. 1:09cv317-CSC (W O )

M E M O R A N D U M OPINION I . Introduction T h e plaintiff, Tammy D. Hood ("Hood"), applied for disability insurance benefits p u rs u a n t to Title II of the Social Security Act, 42 U.S.C. § 401 et seq., and for supplemental s e c u rity income benefits under Title XVI of the Social Security Act, 42 U.S.C. § 1381 et s e q ., alleging that she was unable to work because of a disability. Her application was denied a t the initial administrative level. Hood then requested and received a hearing before an A d m in is tra tiv e Law Judge ("ALJ"). Following the hearing, the ALJ also denied the claim. T h e Appeals Council rejected a subsequent request for review. The Appeals Council's d e c isio n consequently became the final decision of the Commissioner of Social Security ("C o m m iss io n er" ).1 See Chester v. Bowen, 792 F.2d 129, 131 (11 th Cir. 1986). The case is

Pursuant to the Social Security Independence and Program Improvements Act of 1994, Pub.L. No. 1 0 3 - 2 9 6 , 108 Stat. 1464, the functions of the Secretary of Health and Human Services with respect to Social S e c u rity matters were transferred to the Commissioner of Social Security.

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n o w before the court for review pursuant to 42 U.S.C. § 405(g) and § 1631(c)(3). Pursuant to 28 U.S.C. § 636(c)(1) and M.D. Ala. LR 73.1, the parties have consented to entry of final jud g m en t by the United States Magistrate Judge. Based on the court's review of the record in this case and the briefs of the parties, the court concludes that the decision of the C o m m is s io n e r should be reversed and this case remanded to the Commissioner for further p r o c e e d in g s . 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

A "physical or mental impairment" is one resulting from anatomical, physiological, or psychological a b n o r m a litie s which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.

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d is a b le d ." 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 supports 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 r e a so n a b le n e s s 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 . Administrative Proceedings

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

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H o o d was 44 years old at the time of the hearing before the ALJ. (R. 536.) She c o m p l e te d tenth grade. (R. 538.) Hood's prior work experience includes working as a lau n d ry presser and cashier. (R. 540-41.) Hood alleges that she became disabled due to d e p re s s io n and a back condition. (R. 544.) Following the administrative hearing, the ALJ c o n c lu d e d that Hood suffers from severe impairments of disorders of the back (discogenic a n d degenerative) and depression with anxiety. (R. 25.) The ALJ determined Hood is able " [f]ro m a physical standpoint at the light exertional level [to] lift, carry, and push/pull up to 2 0 pounds, occasionally and up to 10 pounds frequently; walk and stand frequently; o c c a s io n a lly bend and crouch; and frequently reach, handle, finger, talk, and hear." (R. 32.) T h e ALJ determined that Hood is able to return to her prior work as a presser and cashier. (R . 36.) Accordingly, the ALJ concluded that Hood is not disabled. (Id.) I V . The Issues I n her brief, Hood raises the following claims: (1 ) T h e Commissioner's decision should be reversed because the A L J failed to evaluate the medical opinions expressed by H o o d 's treating physician under the proper legal standard. (2 ) T h e Commissioner's decision should be reversed because the A L J erred by failing to provide adequate reasons for rejecting c o n tr a ry opinions provided by the examining State physicians. (3 ) T h e Commissioner's decision should be reversed because the

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A L J did not give proper consideration to the effect of the co m b in atio n s of Hood's impairments on her ability to perform w o r k activities. (4 ) T h e Commissioner's decision should be reversed because the A L J did not comply with Social Security Ruling 02-01p in e v a lu a tin g Hood's obesity. (D o c . No. 13, Pl's Brief, p. 8.) I V . Discussion H o o d raises several issues and arguments related to this court's ultimate inquiry of w h e th e r the Commissioner's disability decision is supported by the proper legal standards a n d by substantial evidence. See Bridges v. Bowen, 815 F.2d 622 (11 th Cir. 1987). However, th e court pretermits discussion of Hood's specific arguments because the court concludes that th e Commissioner erred as a matter of law, and thus, this case is due to be remanded for fu rth e r proceedings. Hood complains that the ALJ failed to properly credit the opinion of her treating ph ysician, Dr. J. Paul Maddox, an orthopedic surgeon at Southern Bone and Joint Specialists, P.C . Specifically, Hood asserts that the ALJ did not assign appropriate weight to Dr. Maddox's opinion that she is able to lift no more than 0 to 10 pounds or stand and bend no more than 2 hours, that she should not push or pull with her arms or back is not recommended, and that her ab ility to work is severely impacted. (R. 499B- 499C.)

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T he law is well-settled; the opinion of a claimant's treating physician must be accorded su bsta ntial weight unless good cause exists for not doing so. Jones v. Bowen, 810 F.2d 1001, 1005 (11 th Cir. 1986); Broughton v. Heckler, 776 F.2d 960, 961 (11 th Cir. 1985). However, the weight afforded to a physician's conclusory statements depends upon the extent to which they are supported by clinical or laboratory findings and are consistent with other evidence as to the claim ant's impairment. Wheeler v. Heckler, 784 F.2d 1073, 1075 (11 th Cir. 1986). The C om m ission er "may reject the opinion of any physician when the evidence supports a contrary conclusion." Bloodsworth v. Heckler, 703 F.2d 1233, 1240 (11 th Cir. 1983). The ALJ must articulate the weight given to a treating physician's opinion and must articulate any reasons for disc ountin g the opinion. Schnorr v. Bowen, 816 F.2d 578, 581 (11 th Cir. 1987). W he n summarizing the medical evidence, the ALJ discounted Dr. Maddox's opinion as follows: T h e Administrative Law Judge has considered the form certified by Dr. Maddox's signature on July 9, 2004 (Exhibit B9 E ). In most instances, Dr. Maddox simply checked off the claiman t's level of physical restriction. For example, the check mark s reflect that the claimant had reached maximum medical imp ro v emen t; she could occasionally lift 10 pounds; arm/back p u sh in g /p u llin g was not recommended, but her hand(s) grasping ab ility was not impacted; she could operate or be exposed to m ov ing machinery and exposed to marked changes in temp eratu re/h u mid ity ; and that the claimant's ability to work was severely impacted. It may well be that Dr. Maddox simply did n o t understand the highly unusual, non-official form that the claim ant asked him to complete and certify because this case simp ly does not contain the types of reports, physical ex amin atio ns and diagnostic evaluations that establish that degree o f restriction in the claimant's functional capacity. Moreover, in h is narrative, Dr. Maddox wrote that the claimant was non6

o p erative , but she probably needed a fusion; the claimant's p erman en t partial impairment rating was a mere 15%; and she m ig h t manage sedentary or light duty work." (R . 27.) This court cannot conclude that the ALJ's rejection of Dr. Maddox's opinion is su pported by substantial evidence. First, the court notes that the ALJ's finding that Dr. M addox's notes establish that Hood had "reached maximum medical improvement" and that her condition was "non-operative" is an inaccurate representation of the evidence. (R. 27.) The fo rm completed by Dr. Maddox on July 9, 2004, indicates that, when asked whether the "patient reached maximum medical improvement," Dr. Maddox answered the question by en tering a checkmark next to the word "Yes" and drawing an arrow from his answer toward the handwritten word "non-operative." (R. 499B.) Dr. Maddox also drew an arrow from his answer to a handwritten notation stating that Hood "could benefit from a lumbar fusion" and "see notes 3/12/04." (Id.) Dr. Maddox's March 12, 2004 notations state the following: T amm y is in today and I did look at awake discography at the levels above and before the obviously unstable L4-5 disc with listh esis Grade II. Tammy I think has a good understanding of w hat is wrong. We did not see pathology at the adjacent discs. If she comes to surgery, we would recommend a disc excision interbo dy fusion at that level with instrumentation. It is possible tha t we might have to instrument one level higher but she would n o t need an interbody fusion there. That would only be if that w ere needed for reduction of the spondylo. I am not planning on th at at this point. I have gone through the procedure, attendant risk s of that operation with Tammy in detail. She will make her o w n decision about it or if she wants to discuss it with me further, sh e may. She indicates that she has about reached an end point in terms of her ability to tolerate this and indicates that full co n serv ativ e measures have failed to help her adequately." (R. 424.) Therefore, when reading Dr. Maddox's July 9, 2004 notation in conjunction with his 7

M arch 12, 2004 entry, it is clear that Dr. Maddox's opinion was that conservative measures were no longer effective and that Hood had reached maximum non-operative medical im prov em en t. Dr. Maddox did not state at any point in the medical records that Maddox's back condition itself was non-operative. M ore importantly, although the ALJ determined that Dr. Maddox's opinion is not supported by "reports, physical examinations, and diagnostic evaluations," the medical records ind icate that Hood received extensive treatment from Dr. Maddox and other treating orthopedic specialists at Southern Bone & Joint Specialists after her car accident on July 25, 2003.4 Shortly after the wreck, an emergency room physician diagnosed Hood as suffering from cervical strain and a contusion. (R. 418.) At that time, an x-ray of Hood's cervical spine indicated no abnormalities. (R. 422.) On August 19, 2003, Hood went to Southern Bone & Jo int Specialists with complaints of significant incapacitating low back pain. (R. 436.) Dr. Bonnie Dungan noted that x-rays "reveal[ed] an L4-5 spondylolisthesis, which looks acute and c h ro n ic" and the presence of a fracture. (R. 436-37.) Dr. Dungan's impression was

spondyloly sis of L4-5, acute and chronic; cervicalgia; left shoulder sprain/strain; right knee sp rain/strain, which may be subset of her back injury; left wrist sprain/strain. (R. 437.) On August 25, 2003, Dr. Maddox examined Hood and reviewed the results of an MRI.

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The medical records set forth the details of the car accident as follows: S h e was a driver who was wearing a seat belt, in an old vehicle 1984. She w a s stopped at a light and a car behind her accelerated and crashed into her c a r . Her seat tore loose and her body, knees and back were flung into the s t e e r i n g wheel compartment.

( R . 436.)

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(R. 453.) Dr. Maddox also determined that Hood suffered from "spondylolisthesis of L4 on 5 that looks chronic" and that the "MRI would suggest a significantly degenerative disc at 4-5 with reactive end plate changes." (Id.) On September 30, 2003, Hood returned to Dr. Dungan for a follow-up appointment, complaining of neck, shoulder, and arm pain. (R. 433.) Dr. D ungan noted that Hood was wearing a lumbar brace, that a full body scan revealed a right rib frac ture, that her "cervical range of motion is grossly within normal limits," and that her pain m ay be worsening. (Id.) On October 14, 2003, Dr. Dungan noted that Hood's medication was ch an ged to Parafon Forte, Darvocet, Lexapro, and HCTZ. (R. 431.) On October 16, 2003, Dr. M addox noted that a bone scan "reveal[ed] some increased activity in the low back area although this may be present from pre-existing arthritis with the patient[`s] insistence that she was not having any symptoms in her low back prior to the accident" and that he would "have to assume that there may have been some new bony trauma there on the right side." (R. 430.) O n October 28, 2003, Dr. Dungan noted that an MRI "reveal[ed] a disc bulge at C5-6 and another one at C6-7 creating some stenosis at C5-6." (R. 428, 457.) On October 31, 2003, a radiologist noted that an x-ray of Hood's lumbar spine indicated "vacuum phenomenon of dessicated degenerative disc disease at the L4-5 level. Pars defect posteriorly at the lamina of L 4 bilaterally with overgrowth and sclerosis, associated with the Grade I spondylolisthesis seen of L4 on L5." (R. 452.) On November 18, 2008, Hood returned to Dr. Dungan complaining of severe pain in the morning, as well as interrupted sleep. (R. 427.) Dr. Dungan

recom m ended that Hood continue taking her medications and prescribed Elavil for sleep. (Id.) On December 9, 2003, Hood returned to Dr. Dungan's office and received eight trigger

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point injections of Depomedrol. (R. 426.) Dr. Dungan noted that "[r]eally [Hood's] pain was no better" and that her pain range was "about 9 and 10." (Id.) During the examination, Hood co m p lain ed that her medications, including Lexopril, Imipramine, Hydrochlorothiazide, B extra, and Darvocet" were not helpful. (Id.) Dr. Dungan's impression was "[c]ervicalgia on C 5-6 stenosis, trigger point injections with no improvement and cervical epidural steroids." (I d .) On December 17, 2003, Hood returned to Dr. Maddox's office. Dr. Maddox noted that "studies do reveal the pars defects at 4-5" which he "think[s] are chronic" and that there is "some increased activity at that level on the right which makes [him] think that she has had some new trauma to this area." (R. 430.) In addition, Dr. Maddox recommended an epidural and advised Hood to consider a discography and fusion planning. (Id.) Dr. Maddox also stated that Hood "has about reached that point but we will hopefully see some improvement with the epidural." (Id.) On February 17, 2004, Hood returned to Dr. Dungan's office, reporting that after her p ast injection she "had great relief for a week and then she did have some pain modulation" and that the pain was increasing in intensity. (R. 425.) Dr. Dungan's impression was cerv icalg ia with chronic sprain and strain of the neck and a C5-6 disc bulge. (Id.) Dr. Dungan adm in istered 12 trigger point injections of Depo Medrol and Lidocaine. (Id.) O n March 12, 2004, Hood returned to Dr. Maddox for a follow-up appointment. (R. 424.) Dr. Maddox conducted an "awake discography" and determined that Hood had an "obviously unstable L4-5 disc with listhesis Grade II." (Id.) The orthopedic surgeon

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recommend ed a disc excision interbody fusion and discussed the risks involved with such a pro cedure. (Id.) Dr. Maddox noted that Hood "has about reached an end point in terms of her a b ility to tolerate this and indicates that full conservative measures have failed to help her adequately." (Id.) On March 16, 2004, Dr. Dungan noted that Hood suffered from severe pain in the cervical region, levator scapula, trapezius, and rhomboids. (R. 423.) Dr. Dungan administered 12 trigger point injections and determined that Hood's "cervicalgia really not stable." (Id.) On July 9, 2004, Dr. Maddox completed a form indicating that Hood had reached maximum non-operativ e medical improvement, that she "could benefit from a lumbar fusion," that her permanent partial impairment rating was 15%, that she could occasionally lift no more than 0 to 10 pounds, stand or stoop no more than 0 to 2 hours at a time, and that her ability to work was "severely impacted." (R. 499-C.) In addition, Dr. Maddox noted that Hood "might manage sedentary/light duty at best" and that she "probably needs a fusion." (Id.) Given the objective medical evidence indicating that Hood suffers from chronic cervicalgia and spondylolisthesis with two bulging discs, as well as medical records indicating that Hood received extensive medical treatment, including numerous trigger point injections an d pain medication, for her back condition, the court cannot conclude that the ALJ's determinatio n that this case "does not contain the types of reports, physical examinations and diagnostic evaluations that establish that degree of restriction in the claimant's functional capacity " is supported by substantial evidence. The court also concludes that the ALJ failed to fully develop the record with respect to

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Hood's back condition. Although the ALJ concluded that Hood "[f]rom a physical standpoint at the light exertional level . . . is able to lift, carry, and push/pull up to 20 pounds occasionally and up to 10 pounds frequently; walk and stand frequently; occasionally bend and crouch; and freq ue n tly reach, handle, finger, talk, and hear, " there are no medical records or residual f u n c t i o n a l capacity assessments indicating that Hood is able to perform these activities. W h e n determining that Hood is able to lift, carry, and push/pull up to 10 pounds frequently a n d 20 pounds occasionally, the ALJ substituted his judgment for that of a medical specialist. T h is he cannot do. See Freeman v. Schweiker, 681 F.2d 727, 731 (11 th Cir. 1982). Likewise, th e ALJ failed to resolve inconsistencies in the evidence. For example, in his July 9, 2004, re p o rt, Dr. Maddox indicated that Hood "might manage sedentary/light duty at best," that her p e rm a n e n t partial impairment rating was 15%, and that her ability to work is "severely im p a c te d ." (R. 499-B, 499-C.) In his opinion, the ALJ speculated that "[i]t may well be that D r. Maddox simply did not understand the highly unusual, non-official form that the claimant a sk e d him to complete and certify. . . ." (R. 27.) An administrative law judge has a duty to d e v e lo p a full and fair record. Kelley v. Heckler, 761 F.2d 1538 (11 th Cir. 1985). When there is a conflict, inconsistency, or ambiguity in the record, the ALJ has an obligation to resolve th e conflict, giving specific reasons supported by the evidence as to why he accepted or re jec ted a finding. The ALJ, however, did not resolve the ambiguities and inconsistencies in D r. Maddox's report or seek to further develop the record. A consultative examiner or other m e d ic a l specialist would be better able to determine whether Hood's back and neck condition w o u ld limit her residual functional capacity to perform work. It is error for the ALJ to fail

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to obtain additional testing or otherwise develop the evidence, if that information is necessary to make an informed decision. See Holladay v. Bowen, 848 F.2d 1206, 1209 (11 th Cir. 1988). Thus, the court cannot conclude that the ALJ's determination that Hood has the residual fu n c tio n a l capacity to perform light work is supported by substantial evidence B e c a u s e the ALJ failed to properly consider an orthopedic specialist's opinion that H o o d 's back condition severely impacts her ability to perform work or fully develop the re c o rd with respect to Hood's condition, it is impossible for the court to determine whether th e Commissioner's decision to deny benefits was rational and supported by substantial e v id e n c e.5 The court therefore concludes that this case is due to be remanded.6

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.

The record indicates that Hood's depression and anxiety are also severe impairments. Consequently, a f t e r the ALJ properly considers any effect Hood's back condition has on her residual capacity to perform w o r k , the ALJ should also consider the effect of her mental health impairments in combination with her back c o n d itio n and other impairments. The ALJ must consider every impairment alleged by the plaintiff and d e t e r m i n e whether the alleged impairments are sufficiently severe ­ either singularly or in combination ­ to c r e a t e a disability. See Gibson v. Heckler, 779 F.2d 619, 623 (11 th Cir. 1986). The plaintiff also argues that the ALJ failed to properly consider her obesity. Hood alleges no facts a n d points to no evidence in the record to support her position that her obesity places significant limitations o n her ability to work. The burden is on the plaintiff to demonstrate that the Commissioner's decision is not s u p p o r t e d by substantial evidence. See generally Road Sprinkler Fitters Local Union No. 669 v. Indep. S p r in k le r Corp., 10 F.3d 1563, 1568 (11th Cir. 1994) (It is not the court's responsibility to seek out facts in s u p p o r t of the plaintiff's position.) More importantly, however, the objective medical evidence of record does n o t demonstrate that any treating or consultative physicians placed limitations on Hood due to her obesity. C o n s e q u e n t l y , she is entitled to no relief on this basis.
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D o n e this 28 th day of May, 2010.

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

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