Walker v. Social Security Administration, Commissioner of
Filing
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MEMORANDUM AND ORDER denying plaintiff's appeal. Signed by District Judge J. Thomas Marten on 9/27/2012. (mss)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
TERRY LEE WALKER,
Plaintiff,
vs.
Case No. 11-1071-JTM
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
MEMORANDUM AND ORDER
Plaintiff Terry Lee Walker has applied for Social Security supplemental security
income (SSI) benefits. His application was denied by the Administrative Law Judge (ALJ)
on October 1, 2008, a decision affirmed by the Appeals Council on January 12, 2011. The
single allegation of error by Walker is that the case should be remanded for the
consideration of newly discovered evidence.
Plaintiff-claimant Walker was born in 1966. He has an eleventh-grade education, and
no prior relevant work history. He contends that he became disabled on June 11, 2006, due
to the consequences of a stroke which occurred after he had ceased taking his blood
pressure medication. The detailed facts of the case, which are incorporated herein, are set
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forth independently in the ALJ’s opinion (Tr. 14-19), and summarized in the briefs of
Walker (Dkt. 13, at 2-8) and the Commissioner (Dkt. 16, at 3-9).
The ALJ found that Walker had severe impairments of left cerebellar hemorrhage
with developing hydrocephalus (with a history of craniotomy) and hypertension with left
ventricular hypertrophy. However, these impairments did not meet or equal any of the
listed impairments in 20 C.F.R. Part 404, Subpart P. Specifically, the ALJ noted that Walker
did not meet the standards of listing 11.04, as he did not display any sensor or motor
aphasia resulting in ineffective speech or communication, or significant and persistent
disorganization of motor function in two extremities, resulting in sustained disturbance of
gross or dexterous movements or gait and station. In addition, Walker’s hypertension was
successfully controlled by medication, so he did not meet the standards for listing 4.01. The
ALJ subsequently determined that Walker had a residual functional capacity which would
permit him to perform simple, unskilled work.
After the denial of his SSI claim, Walker reapplied for benefits on February 7, 2011.
This claim was granted, and Walker has begun receiving SSI benefits based on his 2011
application.
The Commissioner determines whether an applicant is disabled pursuant to a
five-step sequential evaluation process (SEP) pursuant to 20 C.F.R. §§ 404.1520 and 416.920.
The applicant has the initial burden of proof in the first three steps: she must show that she
is engaged in substantial gainful activity, that she has a medically-determinable, severe
ailment, and whether that impairment matches one of the listed impairments of 20 C.F.R.
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pt. 404, subpt P., app. 1. See Ray v. Bowen, 865 F.2d 222, 224 (10th Cir. 1989). If a claimant
shows that she cannot return to her former work, the Commissioner has the burden of
showing that she can perform other work existing in significant numbers in the national
economy. 20 C.F.R. § 404.1520(f). See Channel v. Heckler, 747 F.2d 577, 579 (10th Cir. 1984).
The court’s review of the Commissioner’s decision is governed by 42 U.S.C. 405(g)
of the Social Security Act. Under the statute, the Commissioner’s decision will be upheld
so long as it applies the “correct legal standard,” and is supported by “substantial
evidence” of the record as a whole. Glenn v. Shalala, 21 F.3d 983, 984 (10th Cir. 1994).
Substantial evidence means more than a scintilla, but less than a preponderance. It
is satisfied by evidence that a reasonable mind might accept to support the conclusion. The
question of whether substantial evidence supports the Commissioner’s decision is not a
mere quantitative exercise; evidence is not substantial if it is overwhelmed by other
evidence, or in reality is a mere conclusion. Ray, 865 F.2d at 224. The court must scrutinize
the whole record in determining whether the Commissioner’s conclusions are rational.
Graham v. Sullivan, 794 F. Supp. 1045, 1047 (D. Kan. 1992).
This deferential review is limited to factual determinations; it does not apply to the
Commisioner’s conclusions of law. Applying an incorrect legal standard, or providing the
court with an insufficient basis to determine that correct legal principles were applied, is
grounds for reversal. Frey v. Bowen, 816 F.2d 508, 512 (10th Cir. 1987).
The facts before the court indicate that Walker underwent a suboccipital craniotomy.
After he was discharged from the hospital on June 19, 2006, tests showed that his
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hypertension was under control that he had a stable and mild renal insufficiency. He
denied having any headaches and could move without assistance (Tr. 195). Walker visited
his primary care doctor a few weeks afterwards, and was doing well. His doctor noted that
his balance and gait were normal, that he was awake and alert, and had no focal deficits
(Tr. 222, 268).
Walker visited his surgeon on August 22, 2006, and again indicated that he was
doing well, and had no complaints of headaches, vision difficulties, or gait problems,
although if he stood up for too long he could become dizzy. (Tr. 2460-47).
On September, 2, 2006, Walker visited his primary care physician and “report[ed]
that he is doing fine insofar as his heart is concerned.” (Tr. 269). His blood pressure was 124
over 40, and he indicated that he was doing fine with his medications. However, the doctor
also noted that Walker stated “that his speech is slurred [and] balance ... impaired. He
reports that his brain ‘does not compute.’” (Id.) When Walker spoke of how expensive his
medications were, his doctor worked to obtain alternative means of paying for the
medication, warning that “discontinuation of this man’s medications would be a major
tragedy.” (Id.)
Robert W. Barnett, Ph.D., conducted a mental status exam of Walker on November
21, 2006. Barnett’s report indicates that Walker demonstrated only grudging cooperation
with the examination:
His effort and persistence in the questioning was unusually poor and the
validity of his self-report appears virtually nonexistent due to his inability to
provide any meaningful information about himself or his history. With
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regard to his speech and language, for the first several minutes of the
interview it appeared that he was non-responsive to my questions and would
not speak. However, he began making short answers to my questions when
I indicated we would have to terminate the interview. He described his
vision as "it comes and goes" and he said his hearing "will close up for
hours". Rather than listing all of his "I don't know, I don't remember, I can't
remember" responses to my questions, it can best be said that Mr. Walker's
responses were un-useful.
(Tr. 273).
On November 30, 2006, R.E. Schulman, Ph.D., submitted a Psychiatric Review
Technique which concluded that there was insufficient evidence of any mental impairment,
based upon Walker’s lack of cooperation. Schulman wrote that the “[v]alidity of [Walker’s]
self-report appeared virtally [sic] nonexistent due to this inability to provide any
meaningful information” and that without any additional objective information, no
assessment of his mental state could be made. Schulman did not that Walker “has made
several calls to this office, w/no cognitive deficits noted.” (Tr. 288).
On February 5, 2007, Walker’s primary physician noted that his office had last seen
Walker on September 28, 2006. After Walker called the office requesting a letter regarding
his disability for his parole officer, his physician wrote a “Dear Sir/Madam” letter on
March 22, 2007 stating that Walker was unable to work “[a]t least at the time of his last
visit.” (Tr. 296).
Michael Schwartz conducted a mental status examination of Walker on March 26,
2007. Again, the examiner found Walker uncooperative. Indeed, Schwartz wrote that
Walker was “somewhat defense, irritable, almost surly,” and that the results of any test
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scores were probably not valid due to a lack of cooperation. (Tr. 297). He further reported
that other portions of the psychological test indicated that Walker was malingering, with
test scores which indicated that he “knowingly answered the questions incorrectly.” (Tr.
298).
A few days later, on March 29, 2007, Dr. Aaron M. Lewis, D.O., examined Walker.
Walker reported suffering from blackouts, headaches, syncope, and vertigo. Lewis reported
that Walker’s “blood pressure is under excellent control,” and that he exhibited “no motor
weakness or sensory loss.” (Tr. 300). His speech also appeared normal.
On May 16, 2007, Walker visited Dr. Scott Rees for treatment of erectile disorder.
Walker reported to Rees that, except for the erectile problem, “[h]e has otherwise been
feeling well.” (Tr. 320). He reported that he walks 30 minutes everyday for exercise.
On August 2, 2007, Walker called his primary care physician, who reviewed his
medications. Walker reported that he had “[b]een throwing up a lot lately” and
experienced “lightheadedness on occasion.” However, he otherwise “feels ok – no
symptom[s].” (Tr. 325). Walker called the office a few weeks for another letter for his
probation officer. His physician then issued an identical “Dear Sir or Madam” indicating
that Walker was unable to work as of the time of his last (2006) visit.
After the ALJ's decision, Walker's attorney arranged for him to receive a consultative
examination on December 11, 2008 by neurologist Janice M. Mullinix. Mullinix reported
that Walker
comments on lapses of memory in which four to eight hours of time are just
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gone. These episodes occur three to four times a week. He apparently acts
normally and behaves normally during one of the spells, but he has no
recollection of what happened afterwards. He also describes frequent
light-headedness and blackouts that occur about four times a week. He says
they can occur anytime during the day or night. He also has severe
headaches, enough to cause him to cry.
(Tr. 346). Mullinix's physical examination was unremarkable, and she thought it likely that
Walker's brain injury might have caused a disability, but "we need more information to be
able to prove that," and scheduled an EEG and brain MRI. (Tr. 347). After viewing the
results, Mullinix stated that the testing showed "a large area of encephalomalacia in the left
cerebellar hemisphere and a smaller lesion in the left posterior parietal region" which she
believed was "consistent with the patient's claim of disability" and that significant
impairment would be expected to result. (Tr. 394). The EEG showed no abnormalities. (Tr.
352).
Walker is now receiving SSI benefits based on his 2011 application. However, in the
present appeal, Walker seeks a remand on the grounds that the Commissioner erred in
failing to fully consider the impact of Dr. Mullinix’s report. Stressing that the Appeals
Council delayed issuing its order denying his appeal for over two years, Walker also
argues that the ALJ erred in discounting both his credibility and that of his sister, who also
provided hearing testimony. The court finds that no remand should issue, and the appeal
should be denied.
Although the Appeals Council’s ultimate resolution of the 2006 claim was delayed,
the record indicates that much of this delay was the product of Walker’s actions. On
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November 6, 2008, Walker explicitly requested a delay in order to submit additional
information. (Tr. 6). After a substantial delay not attributable to the Commissioner, the
Appeals Council directed Walker on September 6, 2009 to submit any such new
information within 25 days. Walker then submitted the report by Dr. Mullinix.
The Appeals Council then considered the additional information, but found that
it does not warrant a change in the Administrative Law Judge's decision. The
new evidence consists of further radiodiagnostic testing (MRI scan) that
confirms the prior findings reviewed by the state agency (CT scans) that you
have a severe impairment resulting from your prior cerebral hemorrhage.
However, Dr. Mullinix did not provide psychometric testing indicating the
level of functioning resulting from your brain hemorrhage. The evidence of
record relied upon by the Administrative Law Judge included two
psychological consultative examinations in which there was evidence of
malingering even with consideration of your impairment. The
Administrative Law Judge rejected opinions from Dr. Murphy, your treating
physician. The Appeals Council notes that Dr. Murphy also did not provide
testing relevant to your mental functioning, but generally confined his
treatment to your heart/hypertension impairments. Treatment notes from
other sources such as Dr. Renee disclosed only complaints unrelated to the
level of mental dysfunction that including no corroboration of the degree of
dysfunction you and your sister were alleging. Reports in the record of
activities of daily living such as driving, clear speech, work activity and
unimpaired walking indicate a greater level of functioning than what you
and your sister were alleging.
(Tr. 2).
The function of the court is to determine if substantial evidence supports the
decision of the Commissioner. Cowan v. Astrue, 552 F.3d 1182, 1184-85 (10th Cir. 2008). In
conducting this review, the court does not consider the evidence de novo, on the basis of the
evidentiary record presented to the Commissioner. Bradley v. Califano, 573 F.2d 28 (10th Cir.
1978). Walker has not shown good cause for presenting any new evidence outside the
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evidentiary record, and none of the evidence actually submitted to the Commissioner —
including the report of Dr. Mullinix — shows that the Commissioner erroneously found
that Walker was not disabled at the relevant time period.
Such evidence may be taken as evidence corroborating his second (and successful)
SSI claim for the period commencing in 2011, but it does not demonstrate that the decisions
of the ALJ and Appeals Council that Walker was not disabled at the time he claimed (in
2006) were not otherwise amply supported by substantial evidence. As the Appeals
Council stressed, Dr. Mullinix’s report lacked any confirmatory psychometric testing.
The present record contains evidence from multiple sources suggesting malingering
by the claimant. In addition, the opinion submitted by Dr. Murphy was entirely conclusory,
and not grounded on any direct examination after his early post-surgery follow up in 2006.
As the Appeals Council noted, the plaintiff was evaluated by other medical professionals
during the relevant time period, such as Dr. Rees, and no neurological deficits were noted.
Further, the ALJ properly found that Walker’s testimony was not fully credible, given
contradicting information in the medical record. (Tr. 17).
The plaintiff himself acknowledges that he experienced a “remarkable recovery” in
2006, and only later began to experience any problems. (Dkt. 13, at 3). However, Walker has
never demonstrated that these problems rose to the level of a disability for the time period
reflected in his 2006 claim. Given the evidence actually presented to the Commissioner,
substantial evidence supports the determination that Walker was not disabled at the time
of the ALJ’s decision.
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IT IS ACCORDINGLY ORDERED this 27th day of September, 2012, that the present
appeal is hereby denied.
s/ J. Thomas Marten
J. THOMAS MARTEN, JUDGE
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