Prince v. Social Security Administration
Filing
17
MEMORANDUM RULING. Signed by Magistrate Judge Patrick J Hanna on 8/8/16. (crt,Jordan, P)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION
JANE MARIE PRINCE
CIVIL ACTION NO. 6:15-cv-1858
VERSUS
MAGISTRATE JUDGE HANNA
U.S. COMMISSIONER,
SOCIAL SECURITY
ADMINISTRATION
BY CONSENT OF THE PARTIES
MEMORANDUM RULING
Before the Court is an appeal of the Commissioner’s finding of non-disability.
In accordance with the provisions of 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73, the
parties consented to have this matter resolved by the undersigned Magistrate Judge,
and it was referred to the undersigned Magistrate Judge. (Rec. Doc. 15). Considering
the administrative record, the briefs of the parties, and the applicable law, it is ordered
that the Commissioner’s decision be reversed and remanded.
ADMINISTRATIVE PROCEEDINGS
The claimant, Jane Marie Prince, fully exhausted her administrative remedies
prior to filing this action. In June 2012, she filed an application for a period of
disability and disability insurance benefits (“DIB”)1 and an application for
supplemental security income benefits (“SSI”),2 alleging disability beginning on
1
Rec. Doc. 7-1 at 122.
2
Rec. Doc. 7-1 at 126.
February 1, 2012. Her applications were denied.3 The claimant requested a hearing,
which was held on February 5, 2014 before Administrative Law Judge Kim Fields.4
The ALJ issued a decision on February 28, 2014,5 concluding that the claimant was
not disabled within the meaning of the Social Security Act from February 1, 2012
through the date of the decision. The claimant asked for review of the decision, but
the Appeals Council concluded on April 16, 2015 that no basis existed for review of
the ALJ’s decision.6 Therefore, the ALJ’s decision became the final decision of the
Commissioner for the purpose of the Court’s review pursuant to 42 U.S.C. § 405(g).
The claimant then filed this action seeking review of the Commissioner’s decision.
SUMMARY
OF
PERTINENT FACTS
The claimant was born on August 12, 1966.7 At the time of the ALJ’s decision,
she was forty-seven years old. She has a twelfth grade education8 and past relevant
work experience as a child care provider in a day care center and as a teacher’s aid
3
Rec. Doc. 7-1 at 46, 47.
4
The hearing transcript is found at Rec. Doc. 7-1 at 34-45.
5
Rec. Doc. 7-1 at 19-27.
6
Rec. Doc. 7-1 at 5.
7
Rec. Doc. 7-1 at 35.
8
Rec. Doc. 7-1 at 36.
-2-
in a public elementary school.9 She continued to work at Jen’s Infants and Toddlers
in Opelousas, Louisiana, through April 27, 2012, approximately three months after
her alleged disability onset date.10 The claimant does not dispute the finding that she
worked at a substantial gainful activity level through April 27, 2012.11 In her
applications, she alleged that she has been disabled since February 1, 201212 due to
throat cancer, arthritis, and diabetes.13
The claimant was seen in the emergency department of University Medical
Center (“UMC”) in Lafayette, Louisiana, on April 13, 2012, with complaints of
bilateral jaw swelling.14 On April 27, 2012, a CT scan of the soft tissues of the neck
showed lymphadenopathy to the jaw or bilateral parotid gland enlargement. The
claimant was seen at the ear, nose, and throat (“ENT”) clinic at UMC on May 3,
2012.15 The right parotid gland was aspirated but insufficient material for diagnostic
9
Rec. Doc. 7-1 at 152, 166.
10
Rec. Doc. 7-1 at 181-188.
11
Rec. Doc. 12 at 1 n. 2.
12
Rec. Doc. 7-1 at 122, 126.
13
Rec. Doc. 7-1 at 151. This Court found no cancer diagnosis in the record, and Single
Decision Maker Jennifer Spring confirmed with the claimant’s family that, at least as of October 31,
2012, there was no throat cancer diagnosis. Rec. Doc. 7-1 at 62.
14
Rec. Doc. 7-1 at 391-392.
15
Rec. Doc. 7-1 at 388-389.
-3-
study was gathered.16 The claimant followed up at UMC on May 8, 2012, and she
was referred to the surgery department.17
On May 16, 2012, the claimant was seen at UMC’s emergency department.18
Her mother had found her sweaty, confused, and with a very low blood sugar number.
She was diagnosed with dehydration.
The next day, May 17, 2012, she was seen at UMC’s ENT clinic, following up
with regard to her complaints of parotid gland enlargement.19 She was referred to the
surgery department for a biopsy.
On May 25, 2012, the claimant followed up at UMC’s family medicine center.
The parotid swelling was described as suspicious for malignancy.20
On June 5, 2012 and again on June 7, 2012, the claimant was seen at UMC
with regard to enlarged parotid glands.21
The disability report presumably prepared at the time of the claimant’s June
2012 applications for benefits indicates that an interview was conducted face-to-face
16
Rec. Doc. 7-1 at 379.
17
Rec. Doc. 7-1 at 387.
18
Rec. Doc. 7-1 at 364-370.
19
Rec. Doc. 7-1 at 378.
20
Rec. Doc. 7-1 at 356-358.
21
Rec. Doc. 7-1 at 349-350, 353
-4-
with the claimant. She was described as “very slow when walking” and very thin, and
she “had trouble talking and answering the questions due to her condition.”22
The claimant was admitted to UMC on June 13, 2012 and discharged on July
5, 2012, a twenty-three day hospitalization.23 The previous day, she had presented at
the hospital’s emergency room, complaining of a sore throat and painful swallowing
as well as weakness, nausea, decreased appetite, and loss of weight. The initial
diagnoses were hypoxemia, dehydration, malnutrition, anemia, dysphagia, and lower
extremity weakness. It was determined that she also had neurological deficits in
certain cranial nerves. On June 15, 2012, a neurologist consulted on her case and
reached a working diagnosis of acute inflammation demyelinating polyneuropathy
secondary to sarcoidosis. On June 15, she underwent mediastinoscopy with biopsy,
which showed granulomatous inflammation of the lymph nodes.
Because
tuberculosis could not be ruled out, treatment was started. At some point, the
claimant went into respiratory failure and was intubated. She was moved to the
intensive care unit on June 18. After being intubated for three days, a tracheotomy
was performed.24 There were complications from both the mediastinoscopy and the
22
Rec. Doc. 7-1 at 149.
23
Rec. Doc. 7-1 at 248-282.
24
“Tracheostomy (tray-key-OS-tuh-me) is a surgically created hole through the front
of your neck and into your windpipe (trachea). The term for the surgical procedure to create this
-5-
tracheotomy. Due to neurological deficits and cranial nerve palsy, she was diagnosed
with neurosarcoidosis. The claimant developed a staph infection, which was treated.
She was given physiotherapy in an effort to regain strength in her upper and lower
extremities. On June 19, a chest x-ray detected pneumonia.25 On June 21, a
percutaneous endoscopic gastrostomy (“PEG”) feeding tube was surgically inserted
due to her inability to tolerate secretions and her difficulty in swallowing. On June
25, a surgical procedure was required to remedy bleeding from the tracheostomy
site.26 Upon discharge home on July 5, 2012, her diagnoses were neurosarcoidosis,
diabetes mellitus, and hypertension. There is a reference in the records to a history
of throat cancer,27 but no diagnosis of throat cancer was found in the records for this
hospitalization or at any other place in the record.
The claimant was again hospitalized at UMC from July 9 to July 12, 2012.28
She had been seen in the emergency room at Opelousas General Hospital, and was
transferred to the ER at UMC by ambulance. Her blood sugar was extremely low.
opening is tracheotomy. Mayo Clinic, http://www.mayoclinic.org/tests-procedures/tracheostomy/
basics/definition/prc-20020545 (last visited August 3, 2016).
25
Rec. Doc. 7-1 at 286.
26
Rec. Doc. 7-1 at 403-404.
27
Rec. Doc. 7-1 at 274.
28
Rec. Doc. 7-1 at 322-336.
-6-
She was unresponsive when first seen in Opelousas, then became agitated. She was
removed from her insulin regimen, medicated, and slowly regained consciousness and
stability. Upon discharge, she was prescribed NovoLog and Lantus for her diabetes,
Prednisone for the neurosarcoidosis, Coreg and Benazepril for hypertension, and
Celexa for depression. She was able to have liquids and semisolid food orally as well
as receiving nutrition through the PEG tube. Her discharge diagnoses were altered
mental status secondary to hypoglycemia, resolved; neurosarcoidosis; hypertension;
and diabetes mellitus.
On July 24, 2012, the claimant was seen for a follow up visit, and significant
improvement was noted.29
On July 26, 2012, the claimant was seen at the ENT clinic at UMC in follow-up
to her hospitalization.30 It was noted that her cranial nerve paresis was improving.
On August 16, 2012, the claimant was again seen at UMC’s ENT clinic in
follow up.31 She then visited UMC’s internal medicine clinic on September 7, 2012,32
complaining of hand and knee pain as well as a bothersome cough.
29
Rec. Doc. 7-1 at 343-344.
30
Rec. Doc. 7-1 at 283.
31
Rec. Doc. 7-1 at 479.
32
Rec. Doc. 7-1 at 481-484.
-7-
On September 18, 2012, the claimant’s medications included Novolog Flexpen
and Novolog, Carvedilol, aspirin, Prednisone, Citalopram, Benazepril.33
On September 28, 2012,34 Single Decision Maker Jennifer Spring noted that
she spoke with the claimant, who “had a difficult time talking and seemed to have to
gasp for air prior to speaking.” The claimant “had a difficult time talking and had to
take a gasping deep breath with every word or two.” Additionally, the claimant “had
a difficult time talking, coughed, and was wheezing extremely loud. So loud that
when she did I had to hold the phone away from my ear. I then spoke with her
sister. . . and I could hear her wheezing loudly in the background. She is still
ambulating with a walker.”
On October 20, 2012, the claimant was examined by Michael A. Hall, M.D. at
the request of Disability Determination Services.35 She told Dr. Hall that she had
been diagnosed with throat cancer about four months earlier, that she supplements her
diet by means of the feeding tube, that she was diagnosed with diabetes about three
to four years earlier, and that she was diagnosed with arthritis within the past year.
Dr. Hall found that the claimant had no trouble getting on or off the examination table
33
Rec. Doc. 7-1 at 200.
34
Rec. Doc. 7-1 at 51.
35
Rec. Doc. 7-1 at 491-493.
-8-
or dressing or undressing herself. While her speech was slightly muffled due to the
tracheostomy, he noted that her speech was 95% understandable. He found that she
had a normal range of motion, could walk on her heels and toes, could squat, and did
not require an assistive device even though the she had entered the examination room
with a walker. He found that the claimant’s strength was normal in her upper and
lower extremities, and there was no muscle atrophy. He found that her cranial nerves
were grossly intact and her deep tendon reflexes were normal. Dr. Hall found no
evidence of a decrease in functionality due to her alleged arthritis and no end organ
damage secondary to her diabetes or her alleged throat cancer. In his medical
opinion, she did not need an assistive device, and he placed no limitations on her.
On November 15, 2012, the claimant was seen at UMC’s ENT clinic.36 It was
noted that she was doing well. However, the doctor referred the claimant to the
speech department for a PMV. The term “PMV” refers to a Passy-Muir valve, which
is used to help people with tracheostomies speak more normally.37 It was also noted
that her blood sugar numbers were running too high.
36
Rec. Doc. 7-1 at 513.
37
Johns Hopkins Medicine, http://www.hopkinsmedicine.org/tracheostomy/living/
passey-muir_valve.html (last visited June 21, 2016).
-9-
On January 23, 2013, the claimant was seen in the emergency room at UMC
because her feeding tube came out and she was requesting a replacement.38
On January 29, 2013, the claimant was again seen at UMC.39 She was being
referred to the surgery department for removal of her PEG tube.
On April 30, 2013, the claimant again followed-up at the UMC clinic for
tracheostomy care.40 She had no complaints and was voicing well. It was noted that
she was still using the PEG tube.
On October 17, 2013, the claimant was again seen at UMC’s ENT clinic.41 She
was noted to be currently without complaints.
On November 6, 2013, the claimant was again seen at UMC.42
Her
neurosarcoidosis was described as controlled. She still had the tracheostomy and the
PEG tube even though it was noted that she is able to eat. The doctor noted that she
was doing well and had no new complaints.
38
Rec. Doc. 7-1 at 511-512.
39
Rec. Doc. 7-1 at 514-515.
40
Rec. Doc. 7-1 at 510.
41
Rec. Doc. 7-1 at 505.
42
Rec. Doc. 7-1 at 501-503.
-10-
The claimant presented at the ENT clinic at UMC on January 21, 2014 for
follow-up care with regard to her tracheostomy.43 It was noted that she still had
weakness in certain cranial nerves. However, capping trials were to begin and the
claimant was to return to discuss decannulation if the capping went well.
“Decannulation” is the process of removing a tracheostomy when it is no longer
needed.44 The record does not indicate whether the PEG tube was still in place.
At the hearing on February 5, 2014, the claimant testified that she still had both
the tracheostomy and the PEG tube.45 She also had a port for the administration of
medication.46 She testified that home health care nurses were going to her residence
twice a day to assist her with hygiene, medication, and feeding through the PEG
tube.47 She also testified that she was receiving mental health treatment from “some
nurses.”48 The ALJ had difficulty hearing what the claimant said.49 The claimant
43
Rec. Doc. 7-1 at 499.
44
Johns Hopkins Medicine, http://www.hopkinsmedicine.org/tracheostomy/living/
decannulation.html (last viewed June 21, 2016).
45
Rec. Doc. 7-1 at 39, 40.
46
Rec. Doc. 7-1 at 39.
47
Rec. Doc. 7-1 at 39-40.
48
Rec. Doc. 7-1 at 37.
49
Rec. Doc. 7-1 at 36, 37.
-11-
testified that some of her medication is helpful, but some makes her dizzy and causes
her to pass out.50 She stated that there are times when she cannot walk.51 She said she
does not do any laundry, shopping, or housework,52 all of which was done for her by
her sister, and she stated that she was unable to eat solid food or to bathe herself.53
ANALYSIS
A.
STANDARD
OF
REVIEW
Judicial review of the Commissioner's denial of disability benefits is limited
to determining whether substantial evidence supports the decision and whether the
proper legal standards were used in evaluating the evidence.54 “Substantial evidence
is more than a scintilla, less than a preponderance, and is such relevant evidence as
a reasonable mind might accept as adequate to support a conclusion.”55 Substantial
evidence “must do more than create a suspicion of the existence of the fact to be
50
Rec. Doc. 7-1 at 36.
51
Rec. Doc. 7-1 at 37.
52
Rec. Doc. 7-1 at 37-38.
53
Rec. Doc. 7-1 at 40.
54
Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990); Martinez v. Chater, 64 F.3d
172, 173 (5 Cir. 1995).
th
55
Villa v. Sullivan, 895 F.2d at 1021-22 (quoting Hames v. Heckler, 707 F.2d 162, 164
(5 Cir. 1983)).
th
-12-
established, but ‘no substantial evidence’ will only be found when there is a
‘conspicuous absence of credible choices' or ‘no contrary medical evidence.’”56
If the Commissioner's findings are supported by substantial evidence, then they
are conclusive and must be affirmed.57 In reviewing the Commissioner's findings, a
court must carefully examine the entire record, but refrain from re-weighing the
evidence or substituting its judgment for that of the Commissioner.58 Conflicts in the
evidence and credibility assessments are for the Commissioner to resolve, not the
courts.59 Four elements of proof are weighed by the courts in determining if
substantial evidence supports the Commissioner's determination: (1) objective
medical facts, (2) diagnoses and opinions of treating and examining physicians, (3)
the claimant's subjective evidence of pain and disability, and (4) the claimant's age,
education and work experience.60
56
Hames v. Heckler, 707 F.2d at 164 (quoting Hemphill v. Weinberger, 483 F.2d 1137.
1139 (5th Cir. 1973), and Payne v. Weinberger, 480 F.2d 1006, 1007 (5th Cir. 1973)).
57
42 U.S.C. § 405(g); Martinez v. Chater, 64 F.3d at 173; Carey v. Apfel, 230 F.3d 131,
135 (5 Cir. 2000).
th
58
Hollis v. Bowen, 837 F.2d 1378, 1383 (5th Cir. 1988); Villa v. Sullivan, 895 F.2d at
1021; Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995); Carey v. Apfel, 230 F.3d at 135; Boyd v.
Apfel, 239 F.3d 698, 704 (5th Cir. 2001).
59
Martinez v. Chater, 64 F.3d at 174.
60
Wren v. Sullivan, 925 F.2d 123, 126 (5th Cir. 1991); Martinez v. Chater, 64 F.3d at
174.
-13-
B.
ENTITLEMENT
TO
BENEFITS
The Disability Insurance Benefit (“DIB”) program provides income to
individuals who are forced into involuntary, premature retirement, provided they are
both insured and disabled, regardless of indigence.61
Every individual who meets certain income and resource requirements, has
filed an application for benefits, and is determined to be disabled is eligible to receive
Supplemental Security Income (“SSI”) benefits.62
The ALJ found that the claimant does not meet the insured status requirements
for purposes of entitlement to disability insurance cash benefits, but she does meet
the special insured requirements for Medicare purposes through December 31, 2016,
based on her Medicare qualified government employment. This is not contested.
The term “disabled” or “disability” means the 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 twelve months.”63 A
claimant shall be determined to be disabled only if his physical or mental impairment
61
See 42 U.S.C. § 423(a).
62
42 U.S.C. § 1382(a)(1) & (2).
63
42 U.S.C. § 1382c(a)(3)(A).
-14-
or impairments are so severe that he is unable to not only do his previous work, but
cannot, considering his age, education, and work experience, participate in any other
kind of substantial gainful work which exists in significant numbers in the national
economy, regardless of whether such work exists in the area in which the claimant
lives, whether a specific job vacancy exists, or whether the claimant would be hired
if he applied for work.64
C.
EVALUATION PROCESS
AND
BURDEN
OF
PROOF
The Commissioner uses a sequential five-step inquiry to determine whether a
claimant is disabled. This process requires an ALJ to determine whether the claimant
(1) is currently working; (2) has a severe impairment; (3) has an impairment listed in
or medically equivalent to those in 20 C.F.R. Part 404, Subpart P, Appendix 1; (4) is
able to do the kind of work done in the past; and (5) can perform any other work.65
“A finding that a claimant is disabled or is not disabled at any point in the five-step
review is conclusive and terminates the analysis.”66
64
42 U.S.C. § 1382c(a)(3)(B).
65
20 C.F.R. § 404.1520; see, e.g., Wren v. Sullivan, 925 F.2d at 125; Perez v. Barnhart,
415 F.3d 457, 461 (5th Cir. 2005); Masterson v. Barnhart, 309 F.3d 267, 271-72 (5th Cir. 2002);
Newton v. Apfel, 209 F.3d 448, 453 (5th Cir. 2000).
66
Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994), cert. den. 914 U.S. 1120
(1995) (quoting Lovelace v. Bowen, 813 F.2d 55, 58 (5th Cir. 1987)).
-15-
Before going from step three to step four, the Commissioner assesses the
claimant's residual functional capacity67 by determining the most the claimant can still
do despite his physical and mental limitations based on all relevant evidence in the
record.68 The claimant's residual functional capacity is used at the fourth step to
determine whether he can still do his past relevant work and at the fifth step to
determine whether he can adjust to any other type of work.69
The claimant bears the burden of proof on the first four steps.70 At the fifth
step, however, the Commissioner bears the burden of showing that the claimant can
perform other substantial work in the national economy.71 This burden may be
satisfied by reference to the Medical-Vocational Guidelines of the regulations, by
expert vocational testimony, or by other similar evidence.72 If the Commissioner
makes the necessary showing at step five, the burden shifts back to the claimant to
67
20 C.F.R. § 404.1520(a)(4).
68
20 C.F.R. § 404.1545(a)(1).
69
20 C.F.R. § 404.1520(e).
70
Perez v. Barnhart, 415 F.3d at 461; Masterson v. Barnhart, 309 F.3d at 272; Newton
v. Apfel, 209 F.3d at 453.
71
Perez v. Barnhart, 415 F.3d at 461; Masterson v. Barnhart, 309 F.3d at 272; Newton
v. Apfel, 209 F.3d at 453.
72
Fraga v. Bowen, 810 F.2d 1296, 1304 (5th Cir. 1987).
-16-
rebut this finding.73 If the Commissioner determines that the claimant is disabled or
not disabled at any step, the analysis ends.74
D.
THE ALJ’S FINDINGS
AND
CONCLUSIONS
In this case, the ALJ determined, at step one, that the claimant has not engaged
in substantial gainful activity since April 2012.75 This finding is supported by the
evidence in the record.
At step two, the ALJ found that the claimant has the following severe
impairments: neurosarcoidosis and diabetes mellitus II.76 This finding is supported
by evidence in the record.
The claimant argues that her dependence on a
tracheostomy and feeding tube are additional severe impairments that should have
been recognized by the ALJ.
At step three, the ALJ found that the claimant has no impairment or
combination of impairments that meets or medically equals the severity of a listed
impairment.77 The claimant challenges this finding.
73
Perez v. Barnhart, 415 F.3d at 461; Masterson v. Barnhart, 309 F.3d at 272; Newton
v. Apfel, 209 F.3d at 453.
74
Anthony v. Sullivan, 954 F.2d 289, 293 (5th Cir. 1992), citing Johnson v. Bowen, 851
F.2d 748, 751 (5th Cir. 1988). See, also, 20 C.F.R. § 404.1520(a)(4).
75
Rec. Doc. 7-1 at 21-22.
76
Rec. Doc. 7-1 at 22.
77
Rec. Doc. 7-1 at 22.
-17-
The ALJ found that the claimant has the residual functional capacity to perform
work at the sedentary level in a climate controlled environment with the option to
change positions every thirty minutes.78 The claimant challenges this finding.
At step four, the ALJ found that the claimant is not capable of performing her
past relevant work.79
At step five, the ALJ found that the claimant was not disabled from February
1, 2012 through February 28, 2014 (the date of the decision) because there are jobs
in the national economy that she can perform.80 The claimant challenges this finding.
E.
THE ALLEGATIONS
OF
ERROR
The claimant contends that the ALJ erred (1) by failing to find that the
claimant’s dependence on a tracheostomy and feeding tube are severe impairments,
(2) by improperly evaluating whether the claimant meets or medically equals a listing,
(3) by improperly evaluating the lay witness testimony, third-party evidence, and nonmedical evidence, and (4) by improperly evaluating the claimant’s residual functional
capacity and credibility in failing to consider the functional limitations imposed by
her tracheostomy and PEG tube.
78
Rec. Doc. 7-1 at 22.
79
Rec. Doc. 7-1 at 25.
80
Rec. Doc. 7-1 at 26-27.
-18-
F.
THE ALJ ERRED
IMPAIRMENTS
IN
EVALUATING
THE
SEVERITY
OF THE
CLAIMANT’S
Whether a claimant's medical condition qualifies as a “severe impairment” is
evaluated at step two of the sequential analysis.
The Commissioner issued
regulations defining a “severe impairment” as one that “significantly limits [a
claimant's] physical or mental ability to do basic work activities.”81 The Fifth Circuit,
however, has held that a literal application of that definition is inconsistent with the
statutory language and legislative history of the Social Security Act.82 Therefore, the
Fifth Circuit established the following standard for determining whether a claimant's
impairment is severe: an impairment is not severe only when it is a “slight
abnormality [having] such minimal effect on the individual that it would not be
expected to interfere with the individual's ability to work, irrespective of age,
education[,] or work experience.”83 The claimant argues that, under this standard, the
ALJ should have found that her tracheostomy and her feeding tube are severe
impairments.
81
20 C.F.R. §§ 404.1520(c), 416.920(c), 404.1521 (“An impairment or combination
of impairments is not severe if it does not significantly limit your physical or mental ability to do
basic work activities.”).
82
Stone v. Heckler, 752 F.2d 1099, 1104–05 (5th Cir. 1985).
83
Stone v. Heckler, 752 F.2d at 1101.
-19-
The record demonstrates that the claimant’s sarcoidosis affected her cranial
nerves and resulted in the need for a tracheostomy to assist her breathing and a
feeding tube to assist her eating. The ALJ found that the claimant’s neurosarcoidosis
is a severe impairment. The claimant argues that the tracheostomy and feeding tube
cause functional limitations separate and apart from those caused by the disease itself
because they have more than a minimal affect on her ability to work. Due to the
tracheostomy, the claimant has significant difficulty talking for any duration and has
trouble being understood. When Single Decision Maker Jennifer Spring interviewed
the claimant in August 2012, she noted that the claimant “had a difficult time talking
and seemed to have to gasp for air prior to speaking.”84 When Ms. Spring again
interviewed the claimant in September 2012, she similarly noted that the claimant
“had a difficult time talking and had to take a gasping deep breath with every word
or two when she spoke. . . . She had a difficult time talking, coughed, and was
wheezing extremely loud. So loud that when she did I had to hold the phone away
from my ear. I then spoke with her sister. . . and I could hear her wheezing loudly in
the background.”85 When Dr. Hall examined the claimant less than a month later, in
October 2012, he noted that the claimant’s “speech was slightly muffled secondary
84
Rec. Doc. 7-1 at 61.
85
Rec. Doc. 7-1 at 61.
-20-
to placement of the tracheostomy, but was noted to be approximately 95%
understandable.”86 The ALJ gave Dr. Hall’s opinions little weight because the
evidence at the hearing showed the claimant to be more limited than determined by
Dr. Hall.87 The ALJ did not specifically state, however, whether Dr. Hall’s opinion
about the claimant’s ability to communicate orally was the basis for discounting his
opinions. During the brief hearing in February 2014, the claimant remained difficult
to understand. The ALJ noted four times that she had difficulty hearing what the
claimant was saying.88 Both a tracheostomy and a feeding tube are drastic medical
procedures that require regular maintenance. The record reflects clinic visits for
tracheostomy care, including but not limited to a referral for the implantation of a
device to help her speak more normally89 and a required replacement of the feeding
tube.90 Following a careful reading of the ALJ’s decision, this Court finds that the
ALJ should have determined whether the tracheostomy and the feeding tube
constitute severe impairments. This error also impacts the validity of the ALJ’s
evaluation of the claimant’s residual functional capacity since every impairment of
86
Rec. Doc. 7-1 at 492.
87
Rec. Doc. 7-1 at 24.
88
Rec. Doc. 7-1 at 36, 37.
89
Rec. Doc. 7-1 at 513.
90
Rec. Doc. 7-1 at 511-512.
-21-
a claimant – whether severe or not – should be considered in determining residual
functional capacity.
This Court finds that the ALJ’s decision at step two of the sequential analysis
was not reached through the application of proper legal standards, and the
undersigned is unable to determine whether the Commissioner’s conclusion at step
two is or is not based on substantial evidence. Consequently, remand of this matter
is required.
G.
THE ALJ ERRED IN EVALUATING WHETHER THE CLAIMANT’S
IMPAIRMENTS MEET OR MEDICALLY EQUAL A LISTING
The ALJ found that the claimant does not have an impairment or a combination
of impairments that meets or medically equals the severity of a listed impairment. An
“ALJ is required to discuss the evidence and explain the basis for his findings at each
unfavorable step of the sequential evaluation process.”91 More particularly, “[t]he
ALJ should identify the listed impairment for which the claimant's symptoms fail to
qualify and provide an explanation as to how he or she determined that the symptoms
are insufficiently severe to meet any listed impairment.”92
91
Williams v. Astrue, No. 09-0130, 2010 WL 989216, at * 3 (W.D. La. Mar. 15, 2010),
citing Audler v. Astrue, 501 F.3d 446, 448 (5th Cir. 2007), which in turn cites 42 U.S.C. § 405(b)(1).
92
Savoie v. Colvin, No. 14-30-JJB-RLB, 2015 WL 1004217, at *5 (M.D. La. Mar. 5,
2015).
-22-
In Audler v. Astrue, the ALJ, at step three of the analysis, summarily concluded
that the medical evidence in the record indicated that the claimant had impairments
that were severe but not severe enough to meet or medically equal a listed
impairment. The Fifth Circuit Court of Appeals noted that “[t]he ALJ did not identify
the listed impairment for which Audler's symptoms fail to qualify, nor did she provide
any explanation as to how she reached the conclusion that Audler's symptoms are
insufficiently severe to meet any listed impairment.”93 The Fifth Circuit concluded
that “[s]uch a bare conclusion is beyond meaningful judicial review.”94 The court
then went on to explain that:
By the explicit terms of the statute [42 U.S.C. § 405(b)(1)],
the ALJ was required to discuss the evidence offered in
support of Audler's claim for disability and to explain why
she found Audler not to be disabled at that step. Although
the ALJ is not always required to do an exhaustive
point-by-point discussion, in this case, the ALJ offered
nothing to support her conclusion at this step and because
she did not, “we, as a reviewing court, simply cannot tell
whether her decision is based on substantial evidence or
not.”95
93
Audler v. Astrue, 501 F.3d at 448.
94
Audler v. Astrue, 501 F.3d at 448 (quoting Clifton v. Chater, 79 F.3d 1007, 1009 (10th
Cir. 1996)).
95
Audler v. Astrue, 501 F.3d at 448 (quoting Cook v. Heckler, 783 F.2d 1168, 1172 (4th
Cir. 1986)).
-23-
In this case, the ALJ failed to follow the Fifth Circuit’s guidelines in evaluating
the claimant’s impairments, summarily stating that “the claimant does not have an
impairment or combination of impairments that meets or medically equals the severity
of one of the listed impairment. . . .”96 The state agency evaluators considered three
potentially implicated listings – 11.04 regarding central nervous system vascular
accidents, 11.08 concerning spinal cord or nerve root lesions due to any cause, and
12.04 concerning affective disorders97 – and the claimant’s counsel argued in a prehearing brief that the claimant meets or equals the same three listings identified by
the state agency evaluators.98 But the ALJ did not mention those listings – or any
other listings – in her ruling.
In order to determine whether the claimant’s
impairments meet or equal a listing, however, the ALJ should have identified the
relevant listings and then she should have compared the claimant’s symptoms and her
physicians’ medical findings against the criteria for those listings. In this case,
however, the ALJ did not mention any listings, explain what listings she considered,
or explain how she reached the conclusion that the claimant does not meet or equal
them.
Therefore, in accordance with the Fifth Circuit’s reasoning, the
96
Rec. Doc. 7-1 at 22.
97
Rec. Doc. 7-1 at 53, 63, 64.
98
Rec. Doc. 7-1 at 220.
-24-
Commissioner's step three determination in this case was not reached through the
application of proper legal standards and the undersigned is unable to determine
whether the Commissioner’s conclusion at step three is or is not based on substantial
evidence. Consequently, remand is required.99 Accordingly, this matter will be
remanded for a thorough analysis of whether the claimant has an impairment or
combination of impairments that meets or medically equals a listed impairment.
H.
THE ALJ DID NOT ERR IN EVALUATING NON-MEDICAL EVIDENCE
An ALJ is required to evaluate all relevant evidence, including the testimony
from non-medical sources.100 The ALJ’s ruling failed to expressly evaluate the
observations by K. Brooks in a disability report, by single decision maker Jennifer
Spring in her disability analysis, and by the claimant’s sister in a function report.
These persons’ observations are relevant to the severity of the impairments resulting
from the claimant’s medical conditions, her tracheostomy, and her feeding tube;
relevant to the claimant’s residual functional capacity; and relevant to the claimant’s
99
See, e.g., Reyna v. Colvin, No. 5:14-CV-147-C, 2015 WL 1515251, at *4 (N.D. Tex.
Apr. 1, 2015); Marsh v. Comm'r of Soc. Sec. Admin., No. 4:13CV312, 2015 WL 1288656, at *3
(E.D. Tex. Mar. 20, 2015) Watson v. Colvin, No. 3:13-CV-583-BF, 2014 WL 1281473, at *4 (N.D.
Tex. Mar. 31, 2014); Joseph v. Astrue, No. 6:10-CV-01315, 2012 WL 601477, at *6 n. 74 (W.D. La.
Jan. 24, 2012) report and recommendation adopted, No. 6:10-CV-01315, 2012 WL 601586 (W.D.
La. Feb. 22, 2012); Robertson v. Astrue, No. 3-10-CV-1669-BD, 2011 WL 3836915, at *4 (N.D.
Tex. Aug. 26, 2011); Lynch v. Astrue, No. 7–10–CV–0032–BD, 2011 WL 1542056 at *3–4
(N.D.Tex. Apr.22, 2011).
100
20 C.F.R. § 404.1513(d)(4).
-25-
credibility. However, an ALJ is not required to mention every piece of evidence
relied upon in making his decision. Accordingly, this Court cannot conclude that the
ALJ’s failure to specifically mention each of these persons’ observations in her ruling
was error that requires remand of the ALJ’s ruling. However, this matter will be
remanded on other bases, and the Commissioner will be reminded that all evidence
– whether medical or non-medical in nature – must be considered in deciding whether
the claimant is or is not disabled.
I.
THE ALJ ERRED IN EVALUATING THE CLAIMANT’S RESIDUAL FUNCTIONAL
CAPACITY
As noted above, this Court finds that the ALJ erred in failing to consider
whether the claimant’ tracheostomy and feeding tube are severe impairments and
further finds that this error resulted in an incomplete evaluation of the claimant’s
residual functional capacity. There is substantial evidence in the record establishing
that the tracheostomy affects the claimant’s ability to communicate. The severity of
the communication impairment was not expressly considered by the ALJ in making
her residual functional capacity finding. Accordingly, this Court finds that the
residual functional capacity finding is flawed and should be reevaluated on remand.
-26-
J.
DEFERENCE
IS
AFFORDED
TO THE
ALJ’S CREDIBILITY EVALUATION
The ALJ found the claimant to lack credibility, particularly with regard to the
nursing care that she claimed in her hearing testimony to receive. Still, the evidence
presented at the hearing was sufficient for the ALJ to find that the claimant was more
limited than determined by consultants Dr. Hall and Dr. Bishnoi.101 Credibility
determinations by an ALJ are entitled to deference.102 The ALJ is in the best position
to assess a claimant's credibility because he “enjoys the benefit of perceiving
first-hand the claimant at the hearing.”103 The ALJ is correct in this case that there
is no medical evidence in the record corroborating the claimant’s statement that she
receives home-based nursing care or requires the use of a walker to ambulate. This
Court is, therefore, unwilling to second guess the ALJ’s credibility determinations.
CONCLUSION
As fully explained above, this Court finds that the ALJ failed to apply the
proper legal standards at steps two and three of the evaluative process and when
analyzing the claimant’s residual functional capacity. Due to those errors, this Court
cannot determine whether the ALJ’s findings at step two, step three, and with regard
101
Rec. Doc. 7-1 at 24.
102
See Carrier v. Sullivan, 944 F.2d 243, 247 (5th Cir. 1991).
103
Falco v. Shalala, 27 F.3d 160, 164 n.18 (5th Cir. 1994).
-27-
to the claimant’s residual functional capacity are supported by substantial evidence.
Accordingly,
IT IS ORDERED that the Commissioner’s decision is REVERSED and
REMANDED to the Commissioner pursuant to the fourth sentence of 42 U.S.C. §
405(g) with instructions to (1) determine whether the claimant’s dependence upon a
tracheostomy and feeding tube are severe impairments, (2) determine whether the
claimant’s impairments – alone or in combination – meet or equal a listed impairment,
and (3) again evaluate the claimant’s residual functional capacity in light of all of the
evidence – medical and nonmedical – in the record.
Inasmuch as the reversal and remand recommended herein falls under sentence
four of Section 405(g), any judgment entered in connection herewith will be a “final
judgment” for purposes of the Equal Access to Justice Act (EAJA).104
Signed in Lafayette, Louisiana, this 8th day of August 2016.
____________________________________
PATRICK J. HANNA
UNITED STATES MAGISTRATE JUDGE
104
See, Richard v. Sullivan, 955 F.2d 354 (5th Cir.1992), and Shalala v. Schaefer, 509
U.S. 292 (1993).
-28-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?