Curvey v. Social Security Administration

Filing 14

Order Remanding Case to Social Security Administration: IT IS ORDERED: that the Social Security Administration's adverse decision is hereby REVERSED and this matter is REMANDED, under the fourth sentence of 42 U.S.C. 405(g), to the Acting Commis sioner of Social Security for the purposes of conducting further proceedings; specifically, additional administrative proceedings shall be conducted to determine whether the record supports a finding that the plaintiff meets Listing 5.08. Signed by Judge Martin L.C. Feldman on 3/26/2018.(mmv) (cc: mailed to SSA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

CHARLES CURVEY

*

CIVIL ACTION

versus

*

NO. 17-0078

NANCY A. BERRYHILL,
ACTING COMMISSIONER OF
SOCIAL SECURITY ADMINISTRATION

*

SECTION "F"

ORDER
Before the Court is the plaintiff’s objection to Magistrate
Judge Roby’s February 14, 2018 Report and Recommendations that the
Court affirm the Administrative Law Judge’s decision denying the
plaintiff’s disability insurance benefits and supplemental social
security income benefits. For the reasons that follow, this matter
shall be remanded to the Social Security Administration for further
proceedings.
The

plaintiff

presents

one

objection

to

the

magistrate

judge’s Report & Recommendations: the Administrative Law Judge’s
failure to consider whether the plaintiff meets the criteria for
Listing 5.08 was not merely harmless error because the record
supports a finding that he is indeed disabled within the meaning
of this listing.

The relevant portion of Listing 5.08 states:

1

Weight loss due to any digestive disorder despite
continuing treatment as prescribed, with BMI of less
than 17.50 calculated on at least two evaluations at
least 60 days apart within a consecutive 6-month period.
20 C.F.R. Part 404, Subpart P, Appendix 1 (2017). It is undisputed
that the ALJ failed to evaluate whether the plaintiff meets Listing
5.08 at Step 3 of the disability analysis, notwithstanding the
fact that the plaintiff presented this argument to the ALJ.

It is

likewise undisputed that the plaintiff meets certain aspects of
Listing

5.08

insofar

as

he

experienced

weight

loss

despite

continuing treatment as prescribed, with body mass index of less
than 17.50 calculated on at least two evaluations at least 60 days
apart within a consecutive six month period.

The only dispute,

then, is whether there is substantial evidence in the record to
support the plaintiff’s contention that his weight loss was “due
to any digestive disorder.”

Because the record indicates that:

(i) the plaintiff suffered from digestive ailments, some so serious
as to require surgery; (ii) there is nothing in the record to
indicate that the plaintiff’s weight loss was voluntary or due to
lack of appetite; and (iii) the parties do not dispute that the
plaintiff meets all of the criteria for Listing 5.08, disputing
only whether his consistently low BMI is “due to any digestive
disorder,” the plaintiff has demonstrated that record evidence
suggests that he may meet his burden to show that he is disabled
2

if the ALJ considers the evidence in the context of Listing 5.08;
under

these

circumstances,

the

ALJ’s

failure

to

specifically

consider this listed impairment was not merely harmless error. 1
Accordingly,

IT

IS

ORDERED:

that

the

Social

Security

Administration’s adverse decision is hereby REVERSED and this
matter is REMANDED, under the fourth sentence of 42 U.S.C. §
405(g), to the Acting Commissioner of Social Security for the
purposes
additional

of

conducting

administrative

further

proceedings;

proceedings

shall

be

specifically,
conducted

to

determine whether the record supports a finding that the plaintiff
meets Listing 5.08.

New Orleans, Louisiana, March 26, 2018

_____________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

Absent a meaningful discussion by the ALJ concerning whether the
plaintiff meets the criteria for Listing 5.08, the Court cannot
determine if the adverse Step 3 finding is supported by substantial
evidence. The Court is mindful that judicial review is limited in
scope and highly deferential; the Court does not purport to direct
a particular outcome upon remand. The Commissioner has the
prerogative to weigh evidence and resolve conflicts in considering
whether the plaintiff meets all of the criteria for Listing 5.08.
3
1