Hewitt v. Commissioner of Social Security

Filing 18

RULING Affirming the Final Determination of the Commissioner of Social Security. Judgment shall be entered dismissing this action. Signed by Magistrate Judge Stephen C. Riedlinger on 9/30/2013. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

KELLI D. HEWITT
CIVIL ACTION
VERSUS
NUMBER 12-50-SCR
MICHAEL J. ASTRUE, COMMISSIONER
OF SOCIAL SECURITY
RULING ON SOCIAL SECURITY APPEAL
Plaintiff Kelli D. Hewitt 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
affirmed.
Standard of Review
Under 42 U.S.C. § 405(g), judicial review of a final decision
of the Commissioner denying disability 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

standards.

final

decision

applies

the

relevant

legal

Myers v. Apfel, 238 F.3d 617, 619 (5th Cir. 2001).

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.
than a preponderance.

It is more than a mere scintilla and less

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

Cir. 1994); Carey v. Apfel, 230 F.3d 131, 135 (5th Cir. 2000).

A

finding of no substantial evidence is appropriate only if no
credible
decision.

evidentiary

choices

or

medical

findings

support

Boyd v. Apfel, 239 F.3d 698, 704 (5th Cir. 2001).

the
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

Commissioner’s decision.

the

evidence

weighs

against

the

Newton v. Apfel, 209 F.3d 448, 452 (5th

Cir. 2000). 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.

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
physical or mental impairment lasting at least twelve months that
prevents

the

claimant

from

engaging

2

in

substantial

gainful

activity.

20 C.F.R. § 404.1505 and § 416.905.

The regulations

require the ALJ to apply a five step sequential evaluation to each
claim for disability benefits. 20 C.F.R. § 404.1520 and § 416.920.
In the five step sequence used to evaluate claims, the Commissioner
must determine whether: (1) the claimant is currently engaged in
substantial

gainful

activity,

(2)

the

claimant

has

a

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

specific

medical

Each impairment is defined in terms of
signs,

symptoms,

or

laboratory

test

results. For a claimant to show that his or her impairment matches
a listed impairment the 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
the first four steps.

If the claimant shows at step four that he

or she is no longer capable of performing past relevant work, the

3

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.

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. The applicable portion of sentence

six of § 405(g) provides in the second clause that the court “may
at any time order additional evidence to be taken before the
Commissioner of Social Security, but only upon a showing that there
is new evidence which is material and that there is good cause for
the failure to incorporate such evidence into the record in a prior
proceeding.”
To justify this type of remand the evidence must be (1) new,
(2)material, and (3) good cause must be shown for the failure to

4

incorporate

the

evidence

into

the

record

in

the

original

proceeding.

Latham v. Shalala, 36 F.3d 482, 483 (5th Cir. 1994);

Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995).
Implicit in the materiality requirement is that the new
evidence must relate to the time period for which benefits were
denied, and that it not concern evidence of a later acquired
disability,

or

the

subsequent

nondisabling condition.

deterioration

of

a

previously

Haywood v. Sullivan, 888 F.2d 1463, 1471-

72 (5th Cir. 1989); Bradley v. Bowen, 809 F.2d 1054, 1057 (5th Cir.
1987).

For new evidence to be material there also must exist the

reasonable possibility that it would have changed the outcome of
the Commissioner’s determination.

Latham, 36 F.3d at 483.

Background
Plaintiff

was

41

years

old

at

the

time

of

the

decision, and attended school through the eleventh grade.
33-34, 139.1

AR pp. 26-27, 141.

hearing
AR pp.

Plaintiff’s past relevant work

from 1991 through June 1, 2008 consisted primarily of work as a
cashier and office clerk.

AR pp. 36-39, 145-46, 152-58.

In her June 2009 applications for disability and SSI benefits,
the plaintiff alleged that she has been unable to work since June
1, 2008 due to polycystic kidney disease and pain.
1

AR pp. 122-44.

Under the regulations this placed the plaintiff in the
classification of a “younger person,” with a limited education. 20
C.F.R. §§ 404.1563(c) and 404.1564(b)(3); §§ 416.963(c) and
416.964(b)(3).
5

The applications were initially denied and the plaintiff requested
a hearing before an administrative law judge (“ALJ”).
87.

AR pp. 82-

An ALJ hearing was held on June 21, 2010, and the ALJ issued

an unfavorable decision on September 24, 2010. AR pp. 8-66.
At the second step, the ALJ reviewed all the evidence and
concluded that the plaintiff had the following combination of
severe impairments - polycystic kidney disease, diabetes, and
degenerative

joint

disease

of

the

lumbar

spine.

AR

p.

13.

However, the ALJ found that the plaintiff’s headaches, mental
impairments, medication side effects, and alleged stomach problems
were not severe under the standard of Stone v. Heckler.2
13-19.

At

step

three,

the

ALJ

found

that

the

AR pp.

plaintiff’s

combination of impairments did not meet or medically equal one of
the impairments listed in Appendix 1 of the regulations. 20 C.F.R.
Pt. 404, Subpt. P, App. 1.3
Before proceeding to the fourth step the ALJ had to determine
the plaintiff’s residual functional capacity (“RFC”).

The ALJ

found that the plaintiff’s severe impairments left her with a
residual functional capacity to perform the exertional demands of

2

752 F.2d 1099 (5th Cir. 1985).

3

At the third step the medical evidence of the claimant’s
impairments are compared to a list of impairments presumed to be
severe enough to preclude any gainful activity. If a claimant’s
impairments match or equal one of the listed impairments, he or she
qualifies for benefits without additional inquiry. Loza v. Apfel,
219 F.3d 378, 390 (5th Cir. 2000).
6

sedentary work as defined in the regulations,4 and limited her to
climbing, balancing, stooping, kneeling crouching and crawling on
an occasional basis.

AR p. 16.

The ALJ also included

a

nonexertional limitation in her finding - the plaintiff needed to
alternate sitting and standing about every hour.

Based on this

RFC, the ALJ asked vocational expert Lionel Verlawn whether the
plaintiff would be able to engage in any of her past employment, or
make a successful adjustment to other work as defined in the
regulations. The expert testified that the plaintiff could make an
adjustment to other jobs that exists in significant numbers in the
national economy, namely, receptionist and telephone operator.
Based on this vocational testimony, which the ALJ cited in her
decision, the ALJ concluded that the plaintiff could not do her
past relevant work, but she was capable of doing alternative work.
Therefore, at the fifth step the ALJ found that the plaintiff was
not disabled.

AR pp. 16-21, 60-65.

Plaintiff filed a request for review by the Appeals Council.
The Appeals Council considered the plaintiff’s arguments and some
additional evidence provided by the plaintiff,5 but found no basis

4

“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.R. § 404.1567(a) and §
416.967(a).
5

AR pp. 539-46.
7

to review the ALJ’s findings.

On November 22, 2011 the Appeals

Council denied the plaintiff’s request for review and the ALJ’s
findings became the final decision of the Commissioner.

AR pp. 1-

7.
Analysis
After the Appeals Council issued its decision the plaintiff
filed this petition for judicial review. Plaintiff argued that the
ALJ erred at the second step by finding that her only severe
impairments

were

polycystic

kidney

disease,

diabetes

and

degenerative lumbar disease, effectively ignoring many of her other
conditions/impairments.

In the alternative, the plaintiff argued

that the following new evidence demonstrates that benefits should
be awarded or the case reversed and remanded: (1) an MRI of the
lumbar spine dated July 20, 2010;6 and, (2) lab results from April
and June 2012 and an April 27, 2012 letter from Ochsner regarding
evaluation of the plaintiff for a kidney transplant.
Review of the administrative record as a whole demonstrates
that the claims of reversible error urged by the plaintiff are
without merit, and that substantial evidence supports the final
decision of the Commissioner.

Furthermore, the new evidence

provided by the plaintiff on judicial review does not satisfy the
criteria for remand under the second clause of sentence six of §
405(g).

6

AR p. 540.
8

1.

The ALJ’s decision complies with the relevant legal
standards for evaluating the severity of impairments, and
her findings are supported by substantial evidence.

Although the ALJ found at step two that the plaintiff’s
combination of severe impairments consisted of polycystic kidney
disease, diabetes and degenerative lumbar joint disease, in her
analysis

she

impairments.

did

not

ignore

the

plaintiff’s

other

alleged

Rather, the ALJ specifically considered each one of

them alone and in combination under the correct legal standards,7
and the findings were supported by substantial evidence.

AR pp.

13-16.
Mental Impairments. Plaintiff argued that the ALJ should have
found she had a severe mental impairment as a result of depression,
pain

disorder,

reading/learning

intellectual functioning.

disorder

and

borderline

However, it is evident from the ALJ’s

decision that she thoroughly considered all the evidence related to
the plaintiff’s alleged mental impairments, and decided to credit
and

give

more

weight

to

the

evaluation

of

the

state

agency

psychological consultant Jeanne George, Ph.D., rather than the
report of the consulting psychological examiner, Fred L. Tuton. AR
pp. 14-15, 423-44.

George’s evaluation explained how Tuton’s

conclusions were not supported by objective testing and other
evidence contained in the record, and cited other evidence that

7

The ALJ cited the correct legal standards governing severity
of impairments - Stone v. Heckler, supra, and Fraga v. Bowen, 810
F.2d 1296 (5th Cir. 1987)(ALJ must analyze the effect of each
impairment and the combined effect of all impairments in reaching
a decision on severity). AR pp. 13-14.
9

supported her findings.

AR pp. 430-43.8

It is the role of the ALJ

to weigh the evidence and decide any conflicts in the evidence. The
ALJ’s reliance on the George’s report constitutes substantial
evidence to support the finding that the plaintiff’s alleged mental
impairments were non-severe.
Migraine Headaches.

The ALJ also specifically addressed the

evidence related to the plaintiff’s migraine headaches.

The ALJ

noted that the plaintiff was diagnosed with this type of headache
in July 2009.

However, by the next month the records showed that

the medication prescribed for the headaches successfully treated
them.

AR pp. 14, 18, 398-404.

The subsequent medical records did

not indicate any more complaints about frequent and/or severe
headaches, or limitations

resulting from migraine headaches.

Furthermore, the plaintiff’s doctors consistently reported findings
on

physical,

neurological

exams

and

tests

as

normal

or

unremarkable.9 The ALJ’s conclusion that the plaintiff’s migraines
do not constitute a severe impairment is supported by substantial
evidence.
Medication Side Effects.

Plaintiff argued that the ALJ erred

by failing to find that side effects caused by her medications dizziness, drowsiness, lightheadedness - were severe or disabling.
Again, the ALJ addressed this evidence in her written decision. AR

8

See also, AR pp. 32-33, 35, 146.

9

See, for example, AR pp. 211, 216, 266, 299-300, 303, 308,
311, 347, 351-53, 355, 359, 364, 373, 377, 399, 403, 406, 471, 474,
493, 499, 507, 510, 516-20.
10

p. 19. The ALJ noted the plaintiff’s testimony that she was unable
to work due to side effects of medication. The ALJ considered this
testimony in light of the medical and other evidence and found that
it was not credible because the records did not document these
alleged side effects.
this conclusion.

A review of the medical evidence supports

The ALJ’s finding that any medication side

effects were not severe or disabling was supported by substantial
evidence.
Hypertension.

Plaintiff’s problems with kidney disease and

hypertension are well-documented in the medical records. Review of
the ALJ’s decision shows that she specifically addressed the
plaintiff’s poorly controlled hypertension, and determined that it
“very

well

activities.”

may

limit

AR p. 18.

her

ability

to

perform

work-related

Considering the medical evidence the ALJ

reduced the plaintiff’s exertional RFC to sedentary rather than the
light work indicated in the report of the state agency medical
consultant, Dr. Fred Ruiz.

Therefore, even though hypertension is

not included in the ALJ’s finding of severe impairments at step
two, the ALJ in fact found it was one of the plaintiff’s severe
impairments and considered it in determining the plaintiff’s RFC.
Consequently,

any

error

in

failing

to

specifically

cite

hypertension as one of the plaintiff’s severe impairments in the
ALJ’s finding at step two is harmless error.10

10

The primary policy underlying the harmless error rule is to
preserve judgments and avoid waste of time. Mays v. Bowen, 837
(continued...)
11

Gastrointestinal Problems. Finally, the plaintiff argued that
the ALJ did not consider her gastrointestinal problems such as
heartburn, nausea and diarrhea in determining the severity of her
impairments.

The record shows that the ALJ did consider the

plaintiff’s testimony regarding stomach problems in light of the
medical records, but found no basis to conclude that these problems
limited the plaintiff’s ability to perform work-related activities.
AR p. 18.

Even if this condition meets the definition of an

“impairment” under the regulations,11 the plaintiff did not cite,
and the record does not contain, any evidence that it affected the
plaintiff’s ability to perform the exertional or nonexertional
demands of work.
The ALJ evaluated the severity of the plaintiff’s multiple
impairments under the proper legal standards

and her findings are

supported by substantial evidence.

10

(...continued)
F.2d 1362, 1364 (5th Cir.1988). Thus, procedural perfection in
administrative proceedings is not required. A judgment will not be
vacated unless the substantial rights of a party have been
affected. Procedural improprieties constitute a basis for remand
only if they would cast into doubt the existence of substantial
evidence to support the ALJ’s decision. Id.; Morris v. Bowen, 864
F.2d 333, 335 (5th Cir.1988).
11

An alleged impairment must result from anatomical,
physiological, or psychological abnormalities which can be shown by
medically acceptable clinical and laboratory diagnostic techniques,
and must have lasted or be expected to last for a continuous period
of at least 12 months. A physical or mental impairment must be
established by medical evidence consisting of signs, symptoms, and
laboratory findings, not only by the claimant’s statement of
symptoms. 20 C.F.R. §§ 404.1508 and 404.1509; 20 C.F.R. §§ 416.908
and 416.909.
12

2.

The ALJ’s RFC finding and finding at step five that the
plaintiff is not disabled because she can perform
alternative work, are supported by substantial evidence.

The RFC finding is the foundation of the determinations at
steps four and five of the disability analysis.12

The record

contains substantial evidence to support the ALJ’s finding that as
of date of the decision the plaintiff had the following RFC: “the
residual functional capacity to perform sedentary work... with the
ability to climb, balance, stoop, kneel, crouch and crawl on an
occasional basis and with the need to alternative sitting and
standing about every hour.”

AR p. 16.

Substantial evidence to

support this assessment of the plaintiff’s RFC is found in the
report of the state agency medical consultant, Dr. Ruiz, the
consultative

examination

of

plaintiff’s daily activities.13

Dr.

Adeboye

Francis,

and

the

The ALJ included this RFC in her

question to the vocational expert, and the expert testified that
given this RFC and the plaintiff’s age, education and past work
experience, there were a significant number of jobs in the national
economy that the plaintiff would able to do - receptionist and
telephone operator.

The Commissioner’s carried her burden to show

that the plaintiff is able to engage in alternative work that
exists in significant numbers in the national economy.

12

The residual functional capacity determination is used at
the fourth step to determine whether the claimant can do her past
relevant work, and at the fifth step to determine if the claimant
can adjust to other work in the national economy. 20 C.F.R. §
404.1520(e).
13

AR pp. 35-36, 48-51, 54-57, 163-67, 374, 416-20, 445-53.
13

2. Plaintiff’s new evidence from 2012 does not satisfy the
criteria for a sentence six remand to the Commissioner.
Plaintiff attached to her appeal memorandum new evidence
regarding her kidney disease.

This new evidence unfortunately

shows that as of April and June 2012, the plaintiff’s chronic
kidney disease had deteriorated to Stage IV and the plaintiff had
applied to be a candidate for a kidney transplant.14 This evidence,
which did not arise until 2012, is clearly new and could not have
been submitted at the administrative level.15

However, it does not

meet the materiality requirement for a sentence six remand.

To be

material, the new evidence must relate to the time period for which
benefits were sought.

It cannot be evidence of a disability that

is acquired later, or the deterioration of a condition that was
previously nondisabling.
shows

that

almost

two

Review of the new evidence submitted
years

after

the

ALJ’s

decision,

the

plaintiff’s once stable, severe polycystic kidney had deteriorated
to the point where her case was being reviewed for a kidney
transplant.

Under the applicable law, evidence of this worsening

of the plaintiff’s condition so long after the ALJ’s decision
became final, is not relevant to her condition at that time. Thus,
the new evidence does not “warrant a remand because evidence of
deterioration of a condition resulting after the period for which

14

Record document number 12-1, pages 1-5.

15

Plaintiff also appeared to argue that a July 2010 MRI (AR
p. 540) is new evidence. However, this evidence was submitted and
considered by the Appeals Council and it is part of the
administrative record. It is not new evidence.
14

benefits are sought is not material.”

Joubert v. Astrue, 287

Fed.Appx. 380 (5th Cir. 2008); Falco v. Shalala, 27 F.3d 160, 164
(5th Cir. 1994).
Plaintiff’s failure to demonstrate that the new evidence is
material, necessitates denial of the plaintiff’s request for a
remand under sentence six of § 405(g).
Conclusion
Plaintiff’s arguments and the administrative record have been
carefully considered.

Review of the administrative record as a

whole and the analysis above demonstrates that (1) the claims of
reversible error raised by the plaintiff are without merit; (2)
substantial

evidence

supports

the

final

decision

of

the

Commissioner that the plaintiff is not disabled; and, (3) the new
evidence submitted to the court on judicial review does not satisfy
the standards for remand under the second clause of sentence six of
42 U.S.C. § 405(g).
Accordingly, under sentence four of 42 U.S.C. §405(g), the
final determination of the Commissioner that plaintiff Kelli D.
Hewitt is not disabled and denying her application for disability
and supplemental security income (SSI) benefits, is affirmed.
judgment shall be entered dismissing this action.
Baton Rouge, Louisiana, September 30, 2013.

STEPHEN C. RIEDLINGER
UNITED STATES MAGISTRATE JUDGE

15

A