Linton v. Commissioner of Social Security
Filing
15
OPINION AND ORDER reversing the Commissioner's decision and remanding with instructions. Signed by Magistrate Judge Monte C. Richardson on 7/13/2016. (MEH)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
ROBERT LINTON,
Plaintiff,
v.
CASE NO. 3:15-cv-653-J-MCR
CAROLYN W. COLVIN, Commissioner
of the Social Security Administration,
Defendant.
______________________________/
MEMORANDUM OPINION AND ORDER1
THIS CAUSE is before the Court on Plaintiff’s appeal of an administrative
decision denying his application for a period of disability and Supplemental
Security Income. Plaintiff alleges he became disabled on September 25, 2005.
(Tr. 163-69.) A hearing was held before the assigned Administrative Law Judge
(“ALJ”) on May 29, 2013, at which Plaintiff was represented by an attorney. (Tr.
26-64.) The ALJ found Plaintiff not disabled since August 17, 2011. (Tr. 11-20.)
Plaintiff is appealing the Commissioner’s decision that he was not disabled
during the relevant time period. Plaintiff has exhausted his available
administrative remedies and the case is properly before the Court. The
undersigned has reviewed the record, the briefs, and the applicable law. For the
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The parties consented to the exercise of jurisdiction by a United States
Magistrate Judge. (Doc. 8.)
reasons stated herein, the undersigned determines that the Commissioner’s
decision is due to be REVERSED and REMANDED.
I.
Standard of Review
The scope of this Court’s review is limited to determining whether the
Commissioner applied the correct legal standards, McRoberts v. Bowen, 841
F.2d 1077, 1080 (11th. Cir. 1988), and whether the Commissioner’s findings are
supported by substantial evidence, Richardson v. Perales, 402 U.S. 389, 390
(1971). “Substantial evidence is more than a scintilla and is such relevant
evidence as a reasonable person would accept as adequate to support a
conclusion.” Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir.
2004). Where the Commissioner’s decision is supported by substantial evidence,
the district 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 v.
Chater, 67 F.3d 1553, 1560 (11th Cir. 1995); accord Lowery v. Sullivan, 979 F.2d
835, 837 (11th Cir. 1992) (stating the court must scrutinize the entire record to
determine the reasonableness of the Commissioner’s factual findings).
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II.
Discussion
Plaintiff argues one general point on appeal: that the ALJ erred by finding
that Plaintiff’s right leg amputation did not meet Listing 1.05B. More specifically,
Plaintiff argues that the ALJ erroneously found that “Listing 1.05B is not met in
the present case because the claimant can still ambulate effectively with crutches
despite his right leg amputation and prosthesis.” (Doc. 13 at 8.)
Defendant responds that Plaintiff failed to meet his burden of showing that
he experienced “stump complications” resulting in medical inability to use a
prosthesis to ambulate effectively which have lasted or are expected to last for at
least twelve (12) months. Defendant contends, therefore, that the ALJ
committed, at most, harmless error.
A.
The ALJ’s Decision
The ALJ found that Plaintiff had severe impairments, including
degenerative disc disease of the lumbar spine, status post lumbar fusion, right leg
above the knee amputation, chronic pain syndrome, chronic obstructive
pulmonary disease, diabetes mellitus, hypertension, seizure disorder and
substance addiction disorder. (Tr. 13.) The ALJ then determined that Plaintiff did
not have an impairment or combination of impairments that met or medically
equaled the severity of one of the listed impairments in 20 C.F.R. Pt. 404, Subpt.
P, App. 1. (Id.)
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With respect to Plaintiff’s right leg amputation, the ALJ articulated the
following:
In particular, the claimant’s representative alleged that the
severity of the claimant’s impairments meets listing 1.05B
which requires that the individual have an amputation that
effects one or both lower extremities at or above the tarsal
region with stump complications resulting in medical inability to
use a prosthetic device to ambulate effectively. The listing
further requires that the inability to ambulate effectively should
last or be expected to last for at least 12 months. However, in
the present case, the substantial evidence establishes that the
claimant has been able to climb, walk, [and] stand for short
periods despite his use of crutches (Exhibits 4F at p. 24, 6F,
24F at 10). Furthermore, even though the claimant testified
that he occasionally uses a wheelchair for ambulation, there is
no medical evidence that suggests a wheelchair is medically
required or that such use has lasted or will last for 12 months
due to an objective medical reason. Therefore, the
undersigned concludes that Listing 1.05B is not met in the
present case because the claimant can still ambulate
effectively with crutches despite his right leg amputation and
prosthesis.
(Tr. 14.)
The ALJ then determined that Plaintiff had the RFC to perform light work
with limitations, including, inter alia, that Plaintiff “requires crutches for
ambulation.” (Tr. 15.) Benefitting from vocational expert testimony, the ALJ
determined that the Plaintiff is capable of performing jobs that exist in significant
numbers in the national economy, including warehouse checker, small parts
assembler, and ticket seller. (Tr. 19-20.) The ALJ concluded that Plaintiff was
not disabled since August 17, 2011. (Tr. 20.)
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B.
The ALJ Erred in Analyzing Listing 1.05B
Plaintiff argues that the ALJ erred in his analysis of whether Plaintiff met
Listing 1.05B with respect to his right leg amputation. Plaintiff contends that the
ALJ’s finding that Plaintiff can “climb, walk, [and] stand for short periods despite
his use of crutches,” and conclusion that “Listing 1.05B is not met in the present
case because the claimant can still ambulate effectively with crutches despite his
right leg amputation and prosthesis,” fail to show that Plaintiff can “ambulate
effectively” without assistive devices. (Doc. 13 at 7-8.) The undersigned agrees.
The claimant bears the burden of proving disability at the third step of the
sequential evaluation by showing that his impairment meets or equals in severity
an impairment found in 20 C.F.R. Part 404, Subpart P, Appendix 1. See
Wilkinson ex rel. Wilkinson v. Bowen, 847 F.2d 660, 662 (11th Cir. 1987). In
order to meet Listing 1.05B, an individual needs to show an amputation, due to
any cause, of one or both lower extremities at or above the tarsal region, with
stump complications resulting in medical inability to use a prosthetic device to
ambulate effectively, as defined in 1.00B2b, which have lasted or are expected to
last for a least twelve months. 20 C.F.R. Part 404, Subpart P, Appendix 1,
Section 1.05B. Section 1.00B2b defines “the inability to ambulate effectively” as:
[A]n impairment(s) that interferes very seriously with the
individual’s ability to independently initiate, sustain, or
complete activities. Ineffective ambulation is defined generally
as having insufficient lower extremity functioning (see 1.00J) to
permit independent ambulation without the use of a hand-held
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assistive device(s) that limits the functioning of both upper
extremities. (Listing 1.05C is an exception to this general
definition because the individual has the use of only one upper
extremity due to amputation of a hand.)
20 C.F.R. Part 404, Subpart P, Appendix 1, Section 1.00B2b (emphasis added).
Section 1.00B2b further describes that to ambulate effectively:
[I]ndividuals must be capable of sustaining a reasonable
walking pace over a sufficient distance to be able to carry out
activities of daily living. . . [E]xamples of ineffective ambulation
include, but are not limited to, the inability to walk without the
use of a walker, two crutches or two canes, the inability to walk
a block at a reasonable pace on rough or uneven surfaces, the
inability to use standard public transportation, the inability to
carry out routine ambulatory activities, such as shopping and
banking, and the inability to climb a few steps at a reasonable
pace with the use of a single hand rail. The ability to walk
independently about one’s home without the use of assistive
devices does not, in and of itself, constitute effective
ambulation.
Id. (emphasis added).
Here, the ALJ erred in his analysis of Listing 1.05B. For example, the ALJ
found that “substantial evidence establishes that the claimant has been able to
climb, walk, [and] stand for short periods despite his use of crutches.” (Tr. 14.)
However, this finding by the ALJ does not denote that Plaintiff can ambulate
effectively according to Listing 1.05B. As described above, examples of
ineffective ambulation include the inability to walk without the use of two crutches
and the inability to walk a block at a reasonable pace on rough or uneven
surfaces. The ALJ failed to explain what he meant by his finding that Plaintiff
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could ambulate for “short periods” and the evidence cited by the ALJ fails to
clarify the finding. In support of his finding, the ALJ cited three documents: a
handwritten, October 28, 2008 Shands Jacksonville Emergency Department
Nursing Flowsheet, a February 8, 2011 report of consultative examiner Ciceron
V. Lazo, M.D., and emergency department notes dated February 9, 2012. (Tr.
14, 314, 379-85, 1161.) Neither document sheds light on Plaintiff’s ability to
“sustain[] a reasonable walking pace over a sufficient distance to be able to carry
out activities of daily living.”
In fact, Dr. Lazo’s report contradicts a finding that Plaintiff can ambulate
effectively. Dr. Lazo notes Plaintiff’s subjective statements that he “can walk
about 100 feet, stand for about 10 minutes and climb about 10 stairs with his
crutches.” (Tr. 380.) Dr. Lazo also notes that Plaintiff is “unable to heel, toe,
tandem walk or squat.” (Tr. 382.) Dr. Lazo opined that Plaintiff “required the use
of assistance device [sic] (crutches) to ambulate. Gait and station appeared to be
impaired: stooped forward, slow gait in crutches.” (Id.) The ALJ ultimately
afforded Dr. Lazo’s opinion “significant weight” and determined that Plaintiff
“requires crutches for ambulation” in his RFC. (Tr. 15, 17.)
Moreover, the ALJ erroneously “conclud[ed] that Listing 1.05B is not met in
the present case because the claimant can still ambulate effectively with crutches
despite his right leg amputation and prosthesis.” (Tr. 14 (emphasis added).) It is
clear that an effective ambulation determination requires the ALJ to find that
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Plaintiff can ambulate sufficiently without the use of crutches. See 20 C.F.R. Part
404, Subpart P, Appendix 1, Section 1.00B2b (“Ineffective ambulation is defined
generally as having insufficient lower extremity functioning . . . to permit
independent ambulation without the use of a hand-held assistive device(s) that
limits the functioning of both upper extremities . . . Therefore, examples of
ineffective ambulation include, but are not limited to, the inability to walk without .
. . two crutches . . . The ability to walk independently about one’s home without
the use of assistive devices does not, in and of itself, constitute effective
ambulation.”) (emphasis added). In light of the foregoing, the undersigned cannot
conclude that the ALJ applied the correct legal standards to his analysis of
whether Plaintiff met Listing 1.05B, and that the ALJ’s decision in that regard is
supported by substantial evidence.
The Commissioner argues that the ALJ’s error in the analysis of whether
Plaintiff can ambulate effectively constitutes harmless error because Plaintiff
failed to meet his burden of proving that “stump complications” caused his
inability to ambulate effectively as required by Listing 1.05B. However, the ALJ
merely determined that Plaintiff failed to meet Listing 1.05B because he was able
to ambulate effectively without analyzing whether Plaintiff had “stump
complications.” The undersigned “cannot now engage in an administrative review
that was not done in the first instance at the administrative level, but rather must
examine the administrative decision as delivered.” Wilkerson v. Colvin, Case
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No.: CV 114-100, 2015 WL 3827105 at *6 (N.D. Ga. June 18, 2015) (citations
omitted); see also Dixon v. Astrue, 312 F. App’x 226, 229 (11th Cir. 2009) (per
curiam) (holding that the court cannot “supply a reasoned basis for [the ALJ’s
decision] that the [ALJ himself] has not given”); Mills v. Astrue, 226 F. App’x 926,
931-32 (11th Cir. 2007) (acknowledging evidence in the record not mentioned by
the ALJ may support administrative decision but concluding that court could not
“say the error was harmless without re-weighing the evidence,” which would
require “conjecture that invades the province of the ALJ”); Martin v. Heckler, 748
F.2d 1027, 1031 (5th Cir. 1984) (noting that it would be “inappropriate on judicial
review for the first time to apply administrative criteria not themselves considered
by the [Commissioner]”). Therefore, the undersigned cannot accept the
Commissioner’s post-hoc explanations of why Plaintiff does not meet Listing
1.05B.
III.
Conclusion
In light of the foregoing, the Court cannot conclude that the ALJ applied the
correct legal standards with respect to Plaintiff’s disability evaluation and that the
Commissioner’s findings are supported by substantial evidence. Therefore, this
case will be reversed and remanded with instructions to the ALJ to reconsider
whether Plaintiff meets Listing 1.05B with respect to his leg amputation.
Accordingly, it is ORDERED:
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1.
The Commissioner’s decision is REVERSED pursuant to sentence
four of 42 U.S.C. § 405(g) and REMANDED with instructions to the ALJ to
reconsider whether Plaintiff meets Listing 1.05B with respect to his leg
amputation.
2.
The Clerk of Court is directed to enter judgment consistent with this
Order and close the file.
3.
Plaintiff’s counsel is advised that, in the event benefits are awarded
on remand, any § 406(b) or § 1383(d)(2) fee application shall be filed within the
parameters set forth by the Order entered in Case No.: 6:12-mc-124-Orl-22 (In re:
Procedures for Applying for Attorney’s Fees Under 42 U.S.C. §§ 406(b) &
1383(d)(2)).
DONE AND ENTERED at Jacksonville, Florida, on July 13, 2016.
Copies to:
Counsel of Record
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