Hamilton v. Astrue

Filing 15

RULING regarding 1 SOCIAL SECURITY APPEAL: Under sentence four of 42 U.S.C. §405(g), the final determination of the Commissioner of Social Security Michael J. Astrue, denying the application for disability and supplementalsecurity income benef its filed by plaintiff Shani Hamilton is reversed and her claim for benefits is remanded to the Commissioner for proper evaluation of the plaintiff's claims and to obtain any additional medical, vocational or other evidence needed for the new evaluation. Signed by Magistrate Judge Stephen C. Riedlinger on 11/21/11. (DCB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

SHANI HAMILTON
CIVIL ACTION
VERSUS
NUMBER 10-363-SCR
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION
RULING ON SOCIAL SECURITY APPEAL
Plaintiff Shani Hamilton brought this action pursuant to 42
U.S.C. § 405(g) for judicial review of the final decision of the
Commissioner of Social Security (Commissioner) denying her claim
for disability and supplemental security income (SSI) benefits.
For the reasons which follow the Commissioner’s decision is
reversed.
Standard of Review
Under § 405(g), judicial review of a final decision of the
Commissioner denying disability and SSI benefits is limited to two
inquiries: (1) whether substantial evidence exists in the record as
a whole to support the Commissioner’s findings, and (2) whether the
Commissioner’s final decision applies the proper legal standards.
Myers v. Apfel, 238 F.3d 617, 619 (5th Cir. 2001); Perez v.
Barnhart, 415 F.3d 457, 461 (5th Cir. 2005).

If substantial

evidence supports the Commissioner’s findings, they are conclusive
and must be affirmed.

Richardson v. Perales, 402 U.S. 389, 91

S.Ct. 1420, 1422 (1971); Martinez v. Chater, 64 F.3d 172, 173 (5th
Cir. 1995).

Substantial evidence is that which is relevant and

sufficient for a reasonable mind to accept as adequate to support
a conclusion.

It is more than a mere scintilla and less than a

preponderance.

Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir.

1994); Carey v. Apfel, 230 F.3d 131 at 135.

A finding of no

substantial evidence is appropriate only if no credible evidentiary
choices or medical findings support the decision.
239 F.3d 698, 704 (5th Cir. 2001).

Boyd v. Apfel,

In applying the substantial

evidence standard the court must review the entire record as whole,
but may not reweigh the evidence, try the issues de novo, or
substitute its judgment for that of the Commissioner, even if the
evidence weighs against the Commissioner’s decision.
Apfel, 209 F.3d 448, 452 (5th Cir. 2000).

Newton v.

Conflicts in the

evidence are for the Commissioner and not the court to resolve.
Masterson v. Barnhart, 309 F.3d 267, 272 (5th Cir. 2002).
If

the

Commissioner

fails

to

apply

the

correct

legal

standards, or provide a reviewing court with a sufficient basis to
determine that the correct legal principles were followed, it is
grounds for reversal.

Bradley v. Bowen, 809 F.2d 1054, 1057 (5th

Cir. 1981); Western v. Harris, 633 F.2d 1204, 1206 (5th Cir. 1981);
Wiggins v. Schweiker, 679 F.2d 1387, 1389 (11th Cir. 1982).
A claimant has the burden of proving that he or she suffers
from a disability, which is defined as a medically determinable
2

physical or mental impairment lasting at least 12 months that
prevents

the

activity.

claimant

from

engaging

in

substantial

20 C.F.R. § 404.1505 and § 416.905.

gainful

The regulations

require the ALJ to apply a five step sequential evaluation to each
claim for benefits.

20 C.F.R. § 404.1520 and § 416.920.

In the

five step sequence used to evaluate claims the Commissioner must
determine

whether:

substantial

gainful

(1)

the

claimant

activity;

(2)

is

the

currently

claimant

engaged

has

a

in

severe

impairment(s); (3) the impairment(s) meets or equals the severity
of a listed impairment in Appendix 1 of the regulations; (4) the
impairment(s) prevents the claimant from performing past relevant
work; and, (5) the impairment(s) prevents the claimant from doing
any other work.

Masterson, 309 F.3d at 271.

Listed impairments are descriptions of various physical and
mental illnesses and abnormalities generally characterized by the
body system they affect.
several
results.

specific

medical

Each impairment is defined in terms of
signs,

symptoms,

or

laboratory

test

For a claimant to show that his impairment matches a

listed impairment he must demonstrate that it meets all of the
medical criteria specified in the listing.

An impairment that

exhibits only some of the criteria, no matter how severely, does
not qualify.

Sullivan v. Zebley, 493 U.S. 521, 529-32, 110 S.Ct.

885, 891-92 (1990); 20 C.F.R. § 404.1525 and § 416.925.
The burden of proving disability rests on the claimant through

3

the first four steps. At the fourth step the Commissioner analyzes
whether the claimant can do any of his past relevant work.

If the

claimant shows at step four that he or she is no longer capable of
performing

past

relevant

work,

the

burden

shifts

to

the

Commissioner to show that the claimant is able to engage in some
type of alternative work that exists in the national economy.
Myers, supra.

If the Commissioner meets this burden the claimant

must then show that he or she cannot in fact perform that work.
Boyd, 239 F.3d at 705.
Background
Plaintiff Shani Hamilton was 32 years of age at the time of
the

ALJ’s

benefits.1

unfavorable
AR p. 64

decision

denying

her

application

for

Plaintiff graduated from college, and had

worked as a cashier and customer service manager from 1995 until
March 2007.

AR pp. 99, 110-13.

In her application for disability and SSI benefits filed on
January 31, 2008 the plaintiff alleged that as of March 2007 she
was unable to return to her customer service manager job or engage
in any other substantial gainful activity.

AR pp. 22-23, 64, 77.

Plaintiff claimed that she could no longer work because of pain and
limitations caused by multiple severe impairments – a back disorder

1

Under the regulations the plaintiff’s age placed her in the
category of “younger person.”
20 C.F.R. §§ 404.1563(c) and
416.963(c).
4

resulting from a herniated disc and surgery in July 2007,2 swelling
in

her

lower

pressure.

extremities,

numbness,

diabetes

and

high

blood

AR p.82.

Plaintiff’s application was denied and the plaintiff requested
a hearing before an administrative law judge (ALJ).

AR pp. 42-62.

A hearing was held on March 24, 2009 and the ALJ issued an
unfavorable decision on July 2, 2009.

AR pp. 8-31.

At step two of the disability analysis, the ALJ found the
plaintiff had the following severe impairments: disorders of the
back, obesity, and diabetes mellitus.3

AR p. 13.

At step three

the ALJ concluded the plaintiff did not have an impairment or
combination of impairments that met or medically equaled one of the
impairments listed in 20 C.F.R. Pt. 404, Subpt. P, App. 1:
The claimant has the initial burden of proof at this
step.
The claimant, who is represented, advanced no
argument that her condition meets or equals the criteria
for any condition listed in Appendix 1.
Nor is it
apparent on the face of the record that the claimant’s

2

The back surgery was performed because test results showed
the plaintiff had a significant disc herniation with significant
central stenosis at L5-S1. AR pp. 169-70, 251.
3

Effective October 25, 1999, obesity was deleted as a listed
impairment. Weary v. Astrue, 288 Fed.Appx. 961 (5th Cir. 2008);
Wooten v. Apfel, 108 F.Supp.2d 921, 924 (E.D.Tenn. 2000); Allen v.
Apfel, 2001 WL 253120 (E.D.La., Mar. 14, 2001).
However, the
Social Security regulations require that obesity and its effects be
considered in determining whether a claimant meets the listings
related to the musculoskeletal, respiratory and cardiovascular
systems, and considered in combination with other impairments
throughout the sequential disability analysis.
See, Listing
1.00.Q.; listing 3.00.I.; listing 4.00.F; SSR 02-01p, “Evaluation
of Obesity”, 2000 WL 628049 (S.S.A. Sept. 12, 2002).
5

condition is disabling per se. The examiners affiliated
with Disability Determinations Services considered this
issue at the initial level of administrative review and
concluded no listing is met or equaled.
The Administrative Law Judge finds the claimant failed to
discharge her burden of proof. Because she did not meet
her burden of production, it is not necessary for the
Commissioner to produce conflicting evidence to refute
her claims, and the Administrative Law Judge proceeds to
the next step of the evaluation process.
AR pp. 13-14
Proceeding to the fourth step the ALJ made the necessary
residual functional capacity finding.4

He determined that the

plaintiff’s severe impairments left her with a residual functional
capacity (RFC) for a full range of sedentary work as defined in the
regulations.5

AR p. 14.

With a residual functional capacity for

sedentary work, the plaintiff was clearly unable to do her past
work which was at the light to medium exertional level.
18, 26-27, 111-13.
sequential

AR pp. 17-

The ALJ then proceeded to the final step of the

analysis

to

determine

whether

jobs

existed

in

significant numbers in the national economy that the plaintiff

4

The residual functional capacity determination is the
foundation of steps four and five of the sequential disability
evaluation process. 20 C.F.R. §§ 404.1520(e) and 416.920(e).
5

Sedentary work involves lifting no more than 10 pounds at a
time and occasionally lifting or carrying articles like docket
files, ledgers, and small tools.
Although a sedentary job is
defined as one which involves sitting, a certain amount of walking
and standing is often necessary in carrying out job duties. Jobs
are sedentary if walking and standing are required occasionally and
other sedentary criteria are met. 20 C.F.20 C.F.R. §§ 404.1567(a)
and 416.967(a)(definition of sedentary work).
6

could

perform

given

her

age,

residual functional capacity.

education,

work

experience

and

At the fifth step the ALJ relied

solely on the Medical-Vocational Guidelines, Table No. 1, Rule
201.28, stating the rule directed a finding that the plaintiff was
not disabled.

20 C.F.R. Ch. III, Pt. 404, Subpt. P. App. 2.

AR p.

18.
The plaintiff asked the Appeals Council to review the ALJ’s
decision.

The Appeals Council considered the additional medical

evidence submitted and the plaintiff’s arguments but found no basis
to review the ALJ’s decision.

Thus, on May 1, 2010 the Appeals

Council denied the plaintiff’s request for review and the ALJ’s
findings became final.
Plaintiff

then

AR pp. 1-7.
filed

her

petition

for

judicial

review

challenging the Commissioner’s decision that she is not disabled.
Plaintiff argued that the following errors by the ALJ compel
reversal of the decision to deny her benefits: (1) the ALJ’s
finding at step three is not supported by substantial evidence, and
the

record

in

fact

contains

substantial

evidence

that

the

plaintiff’s back impairment satisfies Listing 1.04A.;6 (2) the

6

The criteria for Listing 1.04A. is as follows:
Disorders of the spine (e.g., herniated nucleus pulposus,
spinal arachnoiditis, spinal stenosis, osteoarthritis,
degenerative disc disease, facet arthritis, vertebral
fracture), resulting in compression of a nerve root
(including the cauda equina) or the spinal cord.
With:
A. Evidence of nerve root compression characterized by
(continued...)
7

ALJ’s evaluation of the plaintiff’s residual functional capacity
and credibility were not supported by substantial evidence and the
ALJ rejected the opinions of the plaintiff’s treating orthopedic
doctor without good cause; and, (3) the November 9, 2010 decision
on the plaintiff’s second application for benefits, which found the
plaintiff

disabled

at

step

three

under

Listing

1.04A.,7

demonstrates that the court should reverse the ALJ’s decision on
this application and remand for an award of benefits.
Analysis
The Commissioner argued that the plaintiff failed to show her
impairments satisfied all of the criteria of Listing 1.04A., and
substantial evidence supports the finding the plaintiff is not
disabled. Therefore, any errors by the ALJ, such as his failure to
adequately support his finding at step three, did not affect the
plaintiff’s substantial rights.8

6

(...continued)
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);
7

The November 9, 2010 favorable decision on the plaintiff’s
second application for benefits filed on August 12, 2009, is
attached to the Plaintiff’s Memorandum in Support of Appeal.
Record document number 11.
8

The harmless error doctrine applies in Social Security
disability cases. Thus, procedural perfection in administrative
proceedings is not required. A judgment will not be vacated unless
(continued...)
8

Plaintiff primarily argued that the ALJ’s conclusion that she
did not satisfy the criteria of a listed impairment at step three
was erroneous and not supported by substantial evidence. Plaintiff
advanced
position:

the

following

specific

arguments

in

support

of

her

(1) the ALJ’s finding was conclusory and did not even

mention the specific listing applicable to the plaintiff’s back
impairment, “Disorders of the spine,” Listing 1.04A.; (2) the ALJ’s
statement that the plaintiff, “who is represented,” did not advance
an argument that her condition meets or equals the criteria for any
condition listed in Appendix 1 is plainly contrary to the record;
(3) the ALJ failed to discuss the evidence from Dr. Kyle Girod, the
plaintiff’s treating orthopedic surgeon, which directly addressed
the objective evidence in relation to Listing 1.04A.; and, (4) the
ALJ’s analysis at the third step is not only unsupported by
substantial evidence, it is contradicted by other substantial
evidence in the record.
Review of the administrative record as a whole supports the
plaintiff’s arguments.

Essentially, the Commissioner did not

dispute the plaintiff’s arguments, but relied on the harmless error
doctrine to uphold the ALJ’s finding at the third step.

8

However,

(...continued)
the substantial rights of a party have been affected. Procedural
improprieties “constitute a basis for remand only if such
improprieties would cast into doubt the existence of substantial
evidence to support the ALJs decision.” Morris v. Bowen, 864 F.2d
333, 335 (5th Cir.1988); Mays v. Bowen, 837 F.2d 1362, 1364 (5th
Cir.1988).
9

the doctrine is not applicable here because the substantial rights
of the plaintiff were clearly affected by the ALJ’s errors.
It is clear from the record that in his analysis the ALJ
failed to address Listing 1.04A. and improperly relied on an
incorrect finding that the plaintiff did not argue her condition
met or equaled the criteria for any listed impairment.

AR p. 13.

This statement by the ALJ demonstrates that the ALJ either ignored
or overlooked the two pre-hearing letters and one post-hearing
letter

from

the

plaintiff’s

attorney.

The

focus

of

this

correspondence was the plaintiff’s position that her impairments
met Listing 1.04A.

In the letters this listed impairment was

specifically cited and the criteria for the listing was discussed
in connection with the evidence from the plaintiff’s treating
physician, Dr. Girod.

AR pp. 132-36, 268-74, 284-86.

In light of

the attorney’s letters and the evidence/reports from Dr. Girod, it
is inexplicable that the ALJ made and relied on this incorrect
statement in his written decision and failed to specifically
address Listing 1.04A.
The second reason cited by the ALJ for his third step finding
was that the examiners at the initial level of the disability
determination concluded that “no listing is met or equaled.” AR p.
14.

Review of the record, however, shows the findings by these

non-examining physicians were based only on medical evidence of the
plaintiff’s condition through February 2008.

10

AR pp. 197-204, 220-

21.

Subsequent evidence of the plaintiff’s impairments, which was

also before the ALJ, contained uncontradicted reports and test
results from Dr. Girod.

These reflected a deterioration of the

plaintiff’s condition that began approximately six months after her
July 2007 back surgery.
74, 285.9

AR pp. 157-59, 223-25, 267, 269-70, 273-

This evidence showed the plaintiff had significant

swelling of the right leg that necessitated the plaintiff elevating
her leg several times a day for 15-20 minutes, a positive straight
leg test on the right, limitation of motion of the spine with
flexion and extension, and post-surgery scar tissue (epidural
fibrosis) resulting in an S1 radiculopathy causing increased back
and

leg

pain,

and

decreased

distribution on the right.

sensation

in

the

S1

nerve

root

The medical records also showed the

plaintiff was regularly prescribed several prescription medications
for pain.10
In summary, an erroneous statement that the plaintiff did not
argue she had a listed impairment, and a finding by a non-examining
medical consultant based on incomplete medical records, is not

9

In her request for review to the Appeals Council, the
plaintiff submitted additional treatment records of Dr. Girod from
March, April and September 2009. This evidence was consistent with
his reports from February 2008 to February 2009. Plaintiff also
submitted results from neurological tests conducted June 11, 2009,
which showed the plaintiff had peripheral polyneuropathy of the
upper and lower extremities. AR pp. 291-97.
10

Dr. Girod’s treatment records show the plaintiff
prescribed Lortab, Darvocet, Soma, Flexeril, and Ambien.
11

was

evidence sufficient for a reasonable mind to accept as adequate to
support the ALJ’s conclusion at step three.

Howwever, on judicial

review the court cannot try the issues de novo and make its own
finding as to whether the plaintiff’s impairments meet or equal
Listing 1.04A.

It is the Commissioner’s role to review and weigh

all the evidence and determine whether the plaintiff is disabled at
step

three.

Therefore,

the

Commissioner’s

decision

must

be

reversed and the case remanded for proper consideration of all the
relevant evidence and reevaluation of the plaintiff’s claim that
she is disabled.
Since this error requires remand it unnecessary to address the
plaintiff’s remaining arguments in support of her appeal.

On

remand the plaintiff can determine whether to pursue her other
claims of error in the administrative proceedings, and she can
request

that

the

Commissioner

consider

the

November

9,

2010

decision on her subsequent application for benefits.11

11

It is well established that in cases brought under 42 U.S.C.
§405(g), evidence external to the administrative record is
generally inadmissible, and on judicial review the court cannot
consider any evidence that is not already a part of the
administrative record. Lovett v. Schweiker, 667 F.2d 1,2 (5th Cir.
1981); Flores v. Heckler, 755 F.2d 401, 403 (5th Cir. 1985);
Haywood v. Sullivan, 888 F.3d 1463, 1471 (5th Cir. 1989). It is
equally well established that when such evidence is submitted by a
party on judicial review, the court considers the evidence only to
determine whether remand is appropriate under the second clause of
sentence six of § 405(g). Id. In order to justify such a remand
the evidence must be (1) new, (2)material, and (3) good cause must
be shown for the failure to incorporate the evidence into the
record in the original proceeding. Latham v. Shalala, 36 F.3d 482,
(continued...)
12

Conclusion
The ALJ’s finding at the third step of the disability analysis
was not supported by substantial evidence.

Therefore, the final

decision of the Commissioner denying the plaintiff’s application
for disability and SSI benefits must be reversed.
Accordingly, under sentence four of 42 U.S.C. §405(g), the
final determination of the Commissioner of Social Security Michael
J. Astrue, denying the application for disability and supplemental
security income benefits filed by plaintiff Shani Hamilton is
reversed and her claim for benefits is remanded to the Commissioner
for proper evaluation of the plaintiff’s claims and to obtain any
additional medical, vocational or other evidence needed for the new
evaluation.
Baton Rouge, Louisiana, November 21, 2011.

STEPHEN C. RIEDLINGER
UNITED STATES MAGISTRATE JUDGE

11

(...continued)
483 (5th Cir. 1994); Ripley v. Chater, 67 F.3d 552, 555 (5th Cir.
1995). Because the case must be remanded under sentence four, it
is unnecessary to determine whether the ALJ decision on the
plaintiff’s second application meets the criteria for remand under
the second clause of sentence six.
13