Thomas v. SSA
Filing
14
MEMORANDUM OPINION & ORDER: (1) The decision of the Commissioner is REVERSED, with this action REMANDED; (2) Plaintiff's Motion for Summary Judgment [DE 11] is DENIED; (3) Defendant's Motion for Summary Judgment [DE 13] is GRANTED IN PART AND DENIED IN PART; and (4) This matter shall be STRICKEN from the Court's active docket. Case Terminated. Signed by Judge Joseph M. Hood on 3/29/2019.(RBB)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION at LONDON
VADA JEAN THOMAS,
Plaintiff,
v.
NANCY A. BERRYHILL, ACTING
COMMISSIONER OF SOCIAL
SECURITY
)
)
)
)
)
)
)
)
)
)
)
Case No.
6:18-cv-079-JMH
MEMORANDUM OPINION
AND ORDER
Defendant.
***
Plaintiff Vada Jean Thomas brings this matter under 42 U.S.C.
§ 405(g) seeking judicial review of an administrative decision of
the Acting Commissioner of Social Security.
The Court, having
reviewed the record and the cross motions for summary judgment
filed by the parties, will REVERSE and REMAND the Commissioner’s
decision because for further explanation on the ALJ’s finding
related to whether the claimant met the criteria in listing 1.04.
Otherwise, the ALJ’s determination on listing 12.06 is supported
by substantial evidence and Thomas has failed to demonstrate that
she meets the criteria for listing 12.08.
I.
Standard for Determining Disability
Under the Social Security Act, a disability is defined as
“inability to engage in any substantial gainful activity by reason
of any medically determinable 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 of not less than 12
months.”
42 U.S.C. § 423(d)(1)(A).
In determining disability, an
Administrative Law Judge (“ALJ”) uses a five-step analysis.
See
Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003).
Step
One
considers
substantial
claimant’s
gainful
whether
the
activity;
impairments
are
claimant
Step
“severe”;
Two,
Step
is
still
whether
Three,
performing
any
of
the
whether
the
impairments meet or equal a listing in the Listing of Impairments;
Step Four, whether the claimant can still perform past relevant
work; and, if necessary, Step Five, whether significant numbers of
other jobs exist in the national economy which the claimant can
perform.
As to the last step, the burden of proof shifts from the
claimant to the Commissioner.
Id.; see also Preslar v. Sec’y of
Health & Human Servs., 14 F.3d 1107, 1110 (6th Cir. 1994).
II.
Procedural and Factual History
Thomas filed an application for disability insurance benefits
(DIB) and supplemental security income (SSI) on June 21, 2013,
alleging disability as of March 30, 2010.
[TR 607-16].
Thomas
alleged disability due to major depression, post-traumatic stress
disorder, cervical disc disease, osteoarthritis, short-term memory
loss, and very limited use of her left arm.
claim was denied initially and upon review.
2
[TR 629].
Thomas’s
[TR 466-69, 531-44].
A.
Relevant Medical Evidence
In 2012, Thomas was treated three times at Quantum Healthcare.
[TR 722-31]. Physical examinations at Quantum revealed that Thomas
suffered from back and shoulder pain, decreased range of motion,
difficulty standing up after sitting and squatting, and a depressed
mood.
[Id.].
In 2013, Thomas was treated at the Little Flower Clinic for
back pain and depression.
[TR 758-63].
An x-ray of Thomas’s back
revealed narrowing of two vertebrae, which suggested that Thomas
suffered from degenerative disc disease.
[TR 747].
Plaintiff had two consultative exams with Dr. Barry Burchett,
who diagnosed Thomas with chronic back, hip, and shoulder pain,
and potential depression.
[TR 739, 742, 749].
Additionally, Dr.
William Rigby diagnosed Thomas with PTSD, panic disorder, and major
depression.
[TR 750-51, 754-55].
Moreover, state agency psychologist Laura Cutler, Ph.D.,
found that Thomas could understand, remember, and carry out simple
detailed instructions, could sustain attention for extended twohour
segments
for
detailed
tasks,
could
tolerate
occasional
contact with coworkers and supervisors in nonpublic settings, and
could adapt to routine changes as needed. [TR 447]. The assessment
of
state
agency
psychologist
Jermaine
Robertson,
largely in accord with Dr. Cutler’s assessment.
3
Ph.D.,
[TR 486].
was
Thomas
submitted
two
function
reports
and
a
questionnaire as part of her application for benefits.
57, 674-82].
pain
[TR 644-
On the questionnaire, Thomas reported daily “sharp,
burning, knifelike” pain in her back, hips, knees, left shoulder,
and neck that began after a car accident in 2005.
Thomas
reported
difficulty
with
walking,
[TR 644-45].
travel,
housework, and yard work, among other difficulties.
regular
[TR 646].
Thomas also reported difficulty with using her left arm and
reported that she spent a significant amount of time sitting.
647-48].
Thomas’s
information
but
limitations.
second
emphasized
questionnaire
Thomas’s
mental
contained
health
[TR
similar
issues
and
[TR 674-82].
In 2014, state agency physician Dr. Amanda Lange reviewed the
record evidence and concluded that, while Thomas had exertional
and postural limitations, she could occasionally lift and carry up
to twenty pounds, could stand or walk with normal breaks for about
six hours in an eight-hour workday, and could frequently stoop,
kneel, crouch, and crawl.
[TR 483].
Still, Dr. Lange noted that
Thomas was limited in reaching to the left overhead.
[Id.].
Moreover, Thomas received additional treatment from Quantum
Healthcare in 2014.
[TR 773, 776, 778, 781, 783].
On February
25, 2014, Thomas reported that her anxiety and depression were
well controlled by using the prescription medication Lexapro.
783].
[TR
In September 2014, Thomas reported that she slept well at
4
night
and
that
she
was
still
taking
prescription
medication
Lexapro, but that she continued to have some shoulder pain.
[TR
773].
In November 2014, Thomas had surgery on her left shoulder to
remove a cyst and for rotator cuff repair.
[Tr 791-847].
Post-
surgery, Thomas reported that her pain was controlled and that her
depression had improved.
[TR 767].
continued left hip pain.
Still, Thomas reported some
[Id.].
In 2015, Thomas was assessed by Dr. Robert Hoskins, M.D., and
Dr. Michele Amburgey, Ph.D., related to her disability claim.
869-76, 890-95].
[TR
Dr. Hoskins reported that Thomas had a somewhat
unsteady gait and had difficulty squatting, sitting, and standing
from the chair in the office. [TR 894]. Additionally, Dr. Hoskins
noted that Thomas had a strong limp after taking a few steps.
[Id.].
As a result of his examination, Dr. Hoskins stated that he
“[could not] think of a job that she could keep given the history.
[Id.].
Similarly,
ability
to
Dr.
function
Amburgey’s
as
poor
in
assessment
several
rated
areas,
Thomas’s
including
understanding and remembering detailed instructions, maintaining
attention and concentration for extended periods, and performing
at a consistent pace, among others.
B.
[TR 875].
Hearing Before ALJ
After her claims were denied initially and were denied upon
reconsideration, Thomas pursued her claims at an administrative
5
hearing before ALJ Roger L. Reynolds on September 28, 2015.
[TR
383-411].
the
Thomas
was
administrative hearing.
represented
by
an
attorney
at
At the hearing, Thomas testified that she
had previously worked as a charge nurse.
[TR 387].
Thomas
testified that she was unable to work beginning in 2010 because
she was experiencing a lot of pain and was having problems with
her memory.
[TR 388].
Additionally, Thomas testified that she underwent surgeries
on her left shoulder in November 2014 and July 2015.
[TR 390-91].
Thomas explained that the pain in her left shoulder had improved
since her surgeries and that, although she still does not have
much range of motion, she can raise her left arm over her head but
cannot keep it elevated for an extended period.
[TR 393].
Thomas also testified that she was involved in a serious car
accident in 2005 that resulted in a broken neck and caused lower
back
problems.
[TR
392].
Thomas
explained
that
she
took
prescription medications Robaxin, Neurontin, and Percocet, in
addition to ibuprofen.
[Id.].
Furthermore, Thomas testified that
she had pinched nerves in her hips that could cause her to be
bedridden for three to four days due to back spasms and hip pain
while walking.
[TR 393].
Thomas testified that she had been
treated with steroid injections in her hip that would dull the
pain temporarily but that the last two injections had not relieved
her hip pain.
[Id.].
Additionally, Thomas reported that her C5
6
and C6 vertebrae are pressing on the nerve in her spine, causing
neck pain.
[TR 397].
Thomas also testified that she had seen a few psychiatrists
and that she took Lexapro daily for depression.
[TR 393-94].
Thomas
the
also
discussed
mental
health
issues
at
hearing,
explaining that she had attempted to seek counseling for mental
health issues.
[TR 398].
Thomas also reported that she had a
hard time getting along with others, got very nervous in public,
and that sounds increased her anxiety.
[TR 400].
Finally, Thomas
reported that she struggled the last few years she worked with all
the sounds made by health equipment and monitors at her workplace.
[Id.].
The ALJ also asked Thomas about her daily and personal life.
For instance, Thomas reported that she spends most of her time
sitting in a chair at home reading or thinking.
[TR 401].
She
reported that her children are grown and have families but that
she did have problems socializing with her family at times. [Id.].
Thomas testified that she did not leave her house often but that
she did enjoy camping occasionally.
[TR 402].
The ALJ agreed to hold the record open for thirty days in
order to review an MRI of Thomas’s hip.
[TR 402-03].
Finally,
Betty Lindsey Hale, a vocational expert, testified at the hearing.
[TR 404].
7
C.
The ALJ’s Decision and the Present Appeal
In January 2016, the ALJ issued a written decision in this
matter.
[TR 10-23].
The ALJ concluded that Thomas had severe
physical and mental impairments, including, chronic neck pain, low
back pain, left shoulder pain, degenerative disc disease, hip
bursitis, major depressive disorder, PTSD, and anxiety disorder.
[TR 13].
Still,
the
ALJ
concluded
that
Thomas
did
not
have
an
impairment or combination of impairments that met or medically
equaled the severity of one of the listed impairments.
15].
[TR 13-
Additionally, the ALJ concluded that Thomas had the residual
functional capacity (“RFC”) to perform a limited range of light
work, with mental limitations.
[TR 15].
Based on the testimony
of the vocational expert, the ALJ concluded that Thomas could not
perform her past relevant work, but that Thomas could perform three
light, unskilled jobs existing in the national economy.
22].
[TR 21-
As a result, the ALJ concluded that Thomas was not disabled.
[TR 22].
Subsequently, Thomas sought review of the ALJ’s decision in
this Court on March 15, 2018.
[DE 2].
cross motions for summary judgment.
The parties have filed
[DE 11; DE 13].
As a result,
this matter has been fully briefed and is ripe for review.
8
III.
Standard of Review
When reviewing the ALJ’s decision, this Court may not “try
the
case
de
novo,
resolve
questions of credibility.”
709, 713 (6th Cir. 2012).
conflicts
in
evidence,
or
decide
Ulman v. Comm’r of Soc. Sec, 693 F.3d
This Court determines only whether the
ALJ’s ruling is supported by substantial evidence and was made
pursuant to proper legal standards.
Cutlip v. Sec’y of Health &
Human Servs., 25 F.3d 284, 286 (6th Cir. 1994).
“Substantial
evidence” is defined as “more than a scintilla of evidence but
less than a preponderance; it is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.”
Id.
The Court is to affirm the decision, provided it is supported
by substantial evidence, even if this Court might have decided the
case differently.
See Her v. Comm’r of Soc. Sec., 203 F.3d 388,
389-90 (6th Cir. 1999).
Even so, the existence of substantial evidence supporting the
Commissioner’s decision cannot excuse failure of an ALJ to follow
a mandatory regulation that “is intended to confer a procedural
protection” for the claimant.
Wilson v. Comm’r of Soc. Sec., 378
F.3d 541, 543, 546–47 (6th Cir. 2004).
would
afford
regulation
the
with
Commissioner
impunity
therein illusory.”
and
the
render
“To hold otherwise ...
ability
the
[to]
violate
protections
the
promised
Id. at 546; see also Cole v. Comm’r of Soc.
Sec., 661 F.3d 931, 937 (6th Cir. 2011) (“An ALJ’s failure to
9
follow agency rules and regulations ‘denotes a lack of substantial
evidence, even where the conclusion of the ALJ may be justified
based upon the record.’” (quoting Blakley v. Comm’r of Soc. Sec.,
581 F.3d 399, 409 (6th Cir. 2009))).
IV. Analysis
Thomas raises two main challenges to the ALJ’s decision in
this appeal.
First, Thomas argues that the ALJ erred in finding
that she did not meet a listed impairment.
Specifically, Thomas
argues that there was substantial evidence to establish that her
back condition was per se disabling under Listing 1.04(A) and 1.04
(C).
Additionally, Thomas contends that there was substantial
evidence to demonstrate that she met Listings 12.06 and 12.08,
which deal with anxiety and personality disorders.
Second, Thomas
argues that the ALJ erred in finding that she had the RFC to
perform a limited range of light work.
A.
Additional Evidence
The Secretary argues that additional evidence submitted by
Thomas after the ALJ’s decision is inapplicable here because most
of the additional evidence was already in the record and some of
the evidence was from 2016 and 2017, after the ALJ’s decision.
[DE 13 at 5, Pg ID 996].
Still, the Court need not determine
whether this evidence is applicable because it does not appear
that Thomas relies on any of this additional information in the
present appeal.
10
B.
ALJ’s Determination on Listed Impairments
Thomas argues that the ALJ erred in finding that she did not
meet listings 1.04(A), 1.04(C), 12.06, and 12.08.
[DE 11-1].
These listings are discussed below.
(1)
Listing 1.04 – Disorders of the Spine
Listing 1.04 provides,
1.04 Disorders of the spine (e.g., herniated nucleus
pulposus,
spinal
arachnoiditis,
spinal
stenosis,
osteoarthritis,
degenerative
disc
disease,
facet
arthritis, vertebral fracture), resulting in compromise
of a nerve root (including the cauda equina) or the
spinal cord. With:
A. Evidence of nerve root compression characterized by
neuro-anatomic distribution of pain, limitation of
motion of the spine, motor loss (atrophy with associated
muscle weakness or muscle weakness) accompanied by
sensory or reflex loss and, if there is involvement of
the lower back, positive straight-leg raising test
(sitting and supine);
OR
. . .
C.
Lumbar
spinal
stenosis
resulting
pseudoclaudication,
established
by
findings
appropriate medically acceptable imaging, manifested
chronic nonradicular pain and weakness, and resulting
inability to ambulate effectively, as defined
1.00B2b.
in
on
by
in
in
20 C.F.R. pt. 404, subpt. P, app. 1, § 1.04 (emphasis in
original).
At the third step in the sequential analysis, the ALJ stated
that he had “considered the following listings and finds that,
while the claimant’s physical impairments are severe, the[y] do
11
not meet the listings: 1.00, 9.00 and 11.00.”
Fair enough, but
the ALJ devotes the rest of his written decision at step three to
discussion of listings 12.04 and 12.06.
At bottom, the ALJ must
provide some explanation of why he determined that Thomas failed
to meet the criteria in listing 1.04.
Otherwise, this Court is
unable to engage in any meaningful review of the ALJ’s decision.
Ultimately, this Court is unable to determine if the ALJ’s
decision on listing 1.04 is supported by substantial evidence
because
the
ALJ
cursorily
stated
that
he
did
claimant’s physical impairments met listing 1.00.
not
find
that
In fact, the
ALJ did not even take the time to cite the specific subsections in
listing 1.00 that he claims he considered.
The law requires that
the ALJ provide a discussion of “findings and conclusions, and the
reasons or basis therefor, on all the material issues of fact,
law,
or
discretion
557(c)(3)(A).
presented
on
the
record.”
5
U.S.C.
§
The ALJ must say something more than nothing to
allow this Court to conduct meaningful review of the decision and
findings.
Seeing as the ALJ failed to provide any explanation for
his finding related to listing 1.04, this case will be remanded to
the Social Security Administration to allow the ALJ to conduct a
thorough review of the relevant record evidence and then explain
his findings.
12
(2)
Listing 12.06
The ALJ also found that the severity of Thomas’s mental
impairments, considered singly and in combination, did not meet
the criteria of listings 12.06.
Listing 12.06 deals with anxiety
and obsessive-compulsive disorders.
20 C.F.R. pt. 404, subpt. P,
app. 1, § 12.06.
The ALJ’s finding, the Thomas did not meet the criteria for
listing 12.06, is supported by substantial evidence.
Thomas seems
to argue that she has an anxiety or obsessive-compulsive disorder
that has a marked affect on her daily living, social interaction,
and concentration.
Still, while the ALJ noted that the claimant
has some restrictions in activities or daily living, getting along
with others, and with concentration, there is insufficient record
evidence to demonstrate that Thomas had an anxiety disorder that
had a marked impact on her daily life.
As
the
ALJ
noted,
the
[See TR 14].
consultative
examiner
engaged
in
conversation with Thomas about her career and work experience and
noted that this social interaction was that of a competent adult.
[Id.].
Furthermore, the ALJ noted that there are no objective
psychological
assessments
reflecting
short
term
memory
loss.
[Id.]. Finally, the ALJ observed that Thomas had not had prolonged
treatment
by
a
psychologist
or
psychiatrist,
hospitalization for depression or anxiety disorders.
13
much
[Id.].
less
Simply put, the record evidence does not support a finding
that Thomas had any anxiety related issue that had a marked impact
on
her
life.
Thomas
reported
having
mental
health
issues
associated with childhood trauma and a serious car accident.
Additionally, Thomas reported that she rarely left her home and
that she got nervous in public around crowds.
Still, during past
medical examinations and hearings, Thomas reported that she slept
well, interacted with her family occasionally, went camping, and
could care for herself at home.
As such, Thomas has failed to
demonstrate that she meets the criteria for listing 12.06 and the
ALJ’s
finding
on
listing
12.06
is
supported
by
substantial
evidence.
(3)
Listing 12.08
For the first time on appeal, Thomas contends that the record
evidence supports a finding that she meets the criteria of listings
12.08.
Of course, the ALJ did not consider listing 12.08 because
it was not raised below.
Still,
Thomas
has
failed
to
specifically
point
to
any
objective evidence in the record that demonstrates that she meets
the criteria in listing 12.08.
Listing 12.08 deals with personality and impulse-control
disorders.
To meet the listing, claimants must demonstrate that
they have one or more of the requirements in section A and an
extreme limitation of one or marked limitation of two of the
14
requirements in section B.
20 C.F.R. pt. 404, subpt. P, app. 1,
§ 12.08.
The record does not demonstrate any evidence that suggests
that Thomas meets the section B criteria.
While Thomas reported
some difficulty in getting along and interacting with others, there
is no apparent evidence that Thomas has an extreme or marked
limitation in interacting with others.
Thomas reported that she
interacts with her family occasionally and her reasons for not
leaving her home seem more related to anxiety than personality
issues.
that
Additionally, while some evidence in the record suggests
Thomas
had
limited
difficulties
with
concentration
and
maintaining pace, these limitations seem related, at least in part,
to Thomas’s physical limitations and pain.
Finally, there is no
definitive evidence to suggest that Thomas had an extreme or marked
limitation in understanding, remembering, or applying information
or in adapting and managing herself.
In sum, Thomas has failed to explain, much less prove, how
the record evidence demonstrates that she meets the criteria in
listing 12.08.
Thomas failed to raise this argument below and, as
a result, it was not considered by the ALJ.
Still, there is no
apparent objective evidence in the record that demonstrates that
Thomas meets the criteria in listing 12.08.
15
C.
RFC Determination
This Court cannot consider whether the ALJ’s decision on
residual functional capacity is supported by substantial evidence
until the ALJ provides an explanation about the determination made
on listing 1.04.
Here, the Court has found that this case must be
remanded to the Social Security Administration because the ALJ
failed to explain his determination on whether the claimant met
the
criteria
in
listing
1.04.
The
ALJ’s
discussion
determination on this point may impact the finding on RFC.
and
As a
result, the Court will be able to engage in a more thorough and
meaningful review of the ALJ’s RFC determination once the ALJ has
fully explained the impact, if any, of the claimant’s spinal and
back issues.
V. Conclusion
The ALJ’s determination on listing 12.06 is supported by
substantial evidence and Thomas has failed to prove that she meets
the criteria for listing 12.08.
But, having found that the ALJ
failed to adequately provide an explanation for his finding that
Thomas did not meet the criteria in listing 1.04, the Acting
Commissioner’s final decision is REVERSED and this action is
REMANDED
for
administrative
proceedings
consistent
with
this
opinion.
On remand, the ALJ shall consider the record evidence on
claimant’s spinal disorder and the impact, if any, of this evidence
16
on
her
residual
functional
capacity
and
disability
claim
generally.
Accordingly, it is hereby ORDERED as follows:
(1)
The decision of the Commissioner is REVERSED, with this
action REMANDED;
(2)
Plaintiff’s
Motion
for
Summary
Judgment
[DE
11]
is
Defendant’s
Motion
for
Summary
Judgment
[DE
13]
is
DENIED;
(3)
GRANTED IN PART AND DENIED IN PART; and
(4)
This matter shall be STRICKEN from the Court’s active
docket.
This the 29th day of March, 2019.
17
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