Mister v. Astrue

Filing 23

MEMORANDUM OPINION. Signed by S. Allan Alexander on 6/18/13. (bnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
OXFORD DIVISION
SANDRA MISTER

PLAINTIFF

vs.

CIVIL ACTION NO. 3:12CV96-SAA

CAROLYN W. COLVIN,
Acting Commissioner of Social Security

DEFENDANT

MEMORANDUM OPINION
This case involves an application under 42 U.S.C. § 405(g) for judicial review of the
decision of the Commissioner of Social Security denying the application of plaintiff Sandra
Armstrong Mister for for a period of disability (POD) and disability insurance benefits (DIB)
under Sections 216(I) and 223 of the Social Security Act and for supplemental security income
(SSI) payments under Section 1614(a)(3) of the Act. Docket 10, p. 56-61. Plaintiff protectively
applied for benefits on May 21, 2007, alleging that she became disabled on January 1, 2001 due
to coronary artery disease, chronic heart failure, ischemic cardiomyopathy, cardiomegaly,
hypertension, insulin dependent diabetes Mellitus, diabetic/peripheral neuropathy, seizure
disorder, cognitive dysfunction, obesity, migraine-type headaches, anxiety and depression.
The plaintiff’s claim was denied initially on September 28, 2007 and on reconsideration
on December 4, 2007. Id. at 8-9, 38, 40-42. After plaintiff’s timely request, an Administrative
Law Judge held a hearing on March 11, 2010. Docket 10, p. 629-653. The ALJ issued an
unfavorable decision on March 26, 2010. Id. at 528. The Appeals Council granted plaintiff’s
request for a review on September 17, 2010 and remanded the case to the ALJ. Id. at 524-27.
The ALJ held a second hearing on January 26, 2011, at which plaintiff was not present because
she was hospitalized. Docket 19, p. 1-17. The ALJ rendered a second unfavorable decision on

February 18, 2011. Docket 10, p. 497-510. The Appeals Council denied plaintiff’s request for
review on August 22, 2012. Id. at 481-84. The plaintiff timely filed the instant appeal from the
Commissioner’s most recent decision, and it is now ripe for review.
Because both parties have consented to have a magistrate judge conduct all the
proceedings in this case as provided in 28 U.S.C. § 636(c), the undersigned has the authority to
issue this opinion and the accompanying final judgment.
I. FACTS
The plaintiff was born on August 5, 1966 and was forty-three years old at the time of the
first hearing. Docket 10, p. 56. She has a ninth grade education. Id. at p. 633. She had worked
only briefly as a janitor and as asewing machine operator. Id. at 633-64. Plaintiff protectively
filed her disability application on May 21, 2007, alleging that she became disabled on January 1,
2001 due to coronary artery disease, chronic heart failure, ischemic cardiomypathy,
cardiomegaly, hypertension, insulin dependent diabetes Mellitus, diabetic/peripheral neuropathy,
seizure disorder, cognitive dysfunction, obesity, migraine-type headaches, anxiety and
depression. The ALJ rejected her claims of disability, concluding that even though the plaintiff
had severe impairments of “diabetes mellitus with early neuropathy symptoms, status post
stroke, episodic seizures, headaches, hypertension, cardiomegaly, back disorder, and obesity, ”1
she could perform the full range of sedentary work. After considering her residual functional
capacity [RFC], age, education and past work experience, the ALJ determined, based upon the

1

Interestingly, the ALJ did not find plaintiff’s impaired vision to be a severe impairment
in his February 28, 2011 decision despite finding it a severe impairment in the original decision.
There is no evidence in the record that plaintiff’s vision had improved by the time the second
opinion was issued.
2

20 CFR 404, Subpart P, Appendix 2, Rule 201.24, that plaintiff could perform a significant
number of jobs in the national economy. Docket 10, p. 509-10. Consequently, plaintiff was not
disabled.
Plaintiff claims that Commissioner failed to file a complete administrative transcript, that
the ALJ did not afford proper weight to the opinions of plaintiff’s treating physicians and that the
Commissioner’s ultimate decision is not supported by the totality of the evidence. Docket 14.
Although plaintiff raises these three issues as grounds for appeal, the undersigned is of the
opinion that the ALJ did not properly evaluate and weigh the opinions of the plaintiff's treating
physicians which resulted in an improper RFC. Had the ALJ properly weighed the opinions of
the treating physicians who provided opinions, he would have concluded that the plaintiff could
not perform sedentary work. Therefore, the ALJ's opinion is unsupported by substantial
evidence.
II. STANDARD OF REVIEW
In determining disability, the Commissioner, through the ALJ, works through a five-step
sequential evaluation process.2 The burden rests upon plaintiff throughout the first four steps of
this five-step process to prove disability, and if plaintiff is successful in sustaining her burden at
each of the first four levels, then the burden shifts to the Commissioner at step five.3 First,
plaintiff must prove she is not currently engaged in substantial gainful activity.4 Second,
plaintiff must prove her impairment is “severe” in that it “significantly limits [her] physical or

2

See 20 C.F.R. §§ 404.1520, 416.920 (2010).

3

Crowley v. Apfel, 197 F.3d 194, 198 (5th Cir. 1999).

4

20 C.F.R. §§ 404.1520(b), 416.920(b) (2010).
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mental ability to do basic work activities . . . .”5 At step three the ALJ must conclude plaintiff is
disabled if she proves that her impairments meet or are medically equivalent to one of the
impairments listed at 20 C.F.R. Part 404, Subpart P, App. 1, §§ 1.00-114.09 (2010).6 If plaintiff
does not meet this burden, at step four she must prove that she is incapable of meeting the
physical and mental demands of her past relevant work.7 At step five, the burden shifts to the
Commissioner to prove, considering plaintiff’s residual functional capacity, age, education and
past work experience, that she is capable of performing other work.8 If the Commissioner proves
other work exists which plaintiff can perform, plaintiff is given the chance to prove that she
cannot, in fact, perform that work.9
The court considers on appeal whether the Commissioner’s final decision is supported by
substantial evidence and whether the Commissioner used the correct legal standard. Crowley v.
Apfel, 197 F.3d 194, 196 (5th Cir. 1999); citing Austin v. Shalala, 994 F.2d 1170 (5th Cir. 1993);
Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990). The court has the responsibility to
scrutinize the entire record to determine whether the ALJ’s decision was supported by
substantial evidence and whether the proper legal standards were applied in reviewing the claim.
Ransom v. Heckler, 715 F.2d 989, 992 (5th Cir. 1983). The court has limited power of review

5

20 C.F.R. §§ 404.1520(c), 416.920(c)(2010).

6

20 C.F.R. §§ 404.1520(d), 416.920(d) (2010). If a claimant’s impairment meets certain
criteria, that claimant’s impairments are “severe enough to prevent a person from doing any
gainful activity.” 20 C.F.R. § 416.925 (2003).
7

20 C.F.R. §§ 404.1520(e), 416.920(e) (2010).

8

20 C.F.R §§ 404.1520(g), 416.920(g) (2010).

9

Muse, 925 F.2d at 789.
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and may not reweigh the evidence or substitute its judgment for that of the Commissioner,10 even
if it finds that the evidence leans against the Commissioner’s decision.11 The Fifth Circuit has
held that 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.”
Crowley v. Apfel, 197 F.3d 194, 197 (5th Cir. 1999) (citation omitted). Conflicts in the evidence
are for the Commissioner to decide, and if there is substantial evidence to support the decision, it
must be affirmed even if there is evidence on the other side. Selders v. Sullivan, 914 F.2d 614,
617 (5th Cir. 1990). The court’s inquiry is whether the record, as a whole, provides sufficient
evidence that would allow a reasonable mind to accept the conclusions of the ALJ. Richardson
v. Perales, 402 U.S. 389, 401 (1971). “If supported by substantial evidence, the decision of the
[Commissioner] is conclusive and must be affirmed.” Paul v. Shalala, 29 F.3d 208, 210 (5th Cir.
1994), citing Richardson v. Perales, 402 U.S. 389, 390, 28 L.Ed.2d 842 (1971).
III. DISCUSSION
Plaintiff argues that the ALJ failed to properly consider the opinions of her treating
physicians of over ten years, Dr. Castillo and Dr. Farmer, and instead improperly relied upon his
own lay interpretation of the medical records and some of the findings of one-time examining
physician to reach the RFC. Docket 14, p. 14; Docket 22, p. 4-5. The Commissioner responds
that the ALJ’s opinion that plaintiff can perform sedentary work is supported by the record and
that Newton v. Apfel, 209 F.3d 448, 453 (5th Cir. 2000), does not apply to this case. Additionally,

10

Hollis v. Bowen, 837 F.2d 1378, 1383 (5th Cir. 1988).

11

Bowling v. Shalala, 36 F.3d 431, 434 (5th Cir. 1994); Harrell v. Bowen, 862 F.2d 471,
475 (5 Cir. 1988).
th

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the Commissioner asserts that Dr. Farmer’s Updated Medical Opinions is “nothing more than a
two-page check-box form” and that “forms unaccompanied by in-depth analysis are entitled to
little weight.” Docket 21, p. 11. However, the Commissioner routinely relies upon these checkbox forms from non-treating physicians to support ALJ’s opinions that deny benefits. In this
case, the check-box form was from a treating physician who has over 12 years of experience
treating the plaintiff and diagnosing her illnesses in comparison to typical non-examining
physicians who merely review plaintiff’s records and provide opinions as to their abilities to
perform work related functions. As this court has noted previously, the Commissioner’s
argument that the treating physician’s check-box form is only entitled to little weight borders on
frivolous.
This case involves an RFC based upon the opinion of a physician who examined plaintiff
one time only four months after her application for benefits and before many of her medical
records had been made a part of the record. Although some portions of the report of Dr. Adams
are consistent with the ALJ’s RFC, a reading of the entire report, in combination with the record
as a whole, does not support the ALJ’s RFC. Specifically, in his report from six years ago, Dr.
Adams noted that plaintiff had early neuropathy symptoms in both legs and that she could not
elevate her heels and could only elevate her left toes – not her right. Pulses were absent in both
lower extremities and Dr. Adams could not feel an inguinal pulse on the left and could barely
feel it on the right lower extremity. He indicated that she would have a difficult time crossing a
street before the light changed. We now know that plaintiff has had her left leg amputated below
the knee due to a diabetic foot ulcer becoming cyanotic and gangrenous. Docket 10, p. 617-

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628.12
Dr. Castillo has treated plaintiff for ten (10) years and provided a MSS on August 27,
2007. Docket 10, p. 379-384. He opined that plaintiff frequently experienced pain severe
enough to seriously interfere with attention and concentration required to perform even simple
work tasks. He also found that plaintiff could stand/walk for less than two hours in an eight-hour
day and could sit for six hours, but would require the option to shift from sitting to standing or
walking and might require an assistance device for walking. Further, Dr. Castillo noted that
plaintiff could lift and carry less than ten pounds and that she would likely be absent from work
about four days per month due to her illnesses. These limitations were confirmed by Dr. Farmer,
her treating physician of over twelve years, in reports dated February 2010 and January 2011.
Docket 10, p. 126-27, 616. The Medical Source Statements from Dr. Castillo and Dr. Farmer are
the only opinions in the record setting forth plaintiff’s vocationally-relevant functional
limitations. Dr. Adams was not asked to provide a MSS. Because he assigned both treating
physicians’ opinions little weight, it appears that the ALJ reached his conclusion as to plaintiff’s
vocationally relevant functional limitations on his own after hearing plaintiff’s testimony and
reviewing the raw medical data.
Without doubt the responsibility to determine the plaintiff’s residual functional capacity
belongs to the ALJ, Ripley v. Chater, 67 F.3d 552, 557 (5th Cir. 1995), but in making this
determination he must consider all the evidence in the record, evaluate the medical opinions in

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Interestingly, the Appeals Council returned records concerning the amputation to
plaintiff and advised that she could utilize the records to pursue a new claim. Plaintiff has been
patient while waiting on a final decision on this claim for six (6) years. She should not have to
file a subsequent claim when the Commissioner and now the court has the necessary evidence to
make a determination on her claim.
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light of other information contained in the record, and determine the plaintiff’s ability despite
any physical and mental limitations. Martinez v. Chater, 64 F.3d 172, 176 (5th Cir. 1995). An
ALJ may not establish physical limitations or the lack of such limitations without medical proof
to support that conclusion. Patterson v. Astrue, 2008 WL 5104746, *4 (N.D. Miss. 2008), citing
Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999). “The ALJ’s findings of fact are conclusive
when supported by substantial evidence, 42 U.S.C. 405(g), but are not conclusive when derived
by ignoring evidence, misapplying the law or judging matters entrusted to experts.” Nyugen v.
Chater, 172 F.3d at 35.
The court has examined the record and found multiple limitations that the ALJ not only
excluded from his RFC, but simply disregarded. Specifically, he failed to include any limitation
concerning plaintiff’s vision which he had included in the original opinion and for which there is
no record indicating that plaintiff’s vision has improved. Additionally, there is no limitation
provided that plaintiff must be allowed to shift from sitting to standing or walking at will and
that she may be required to use an assistive device for walking.
As argued by plaintiff, in the Fifth Circuit, “an ALJ may not rely on his own unsupported
opinion as to the limitations presented by the applicant’s medical conditions.” Ripley v. Chater,
67 F.3d 552, 557-58 (5th Cir. 1995). This appears to be exactly what the ALJ did in this case. In
direct contradiction to both the medical evidence in the record and applicable case law, the ALJ
established physical limitations without any medical proof to support those limitations, then,
using those unsupported limitations, reached an RFC based upon his own extrapolation from the
medical records to rate plaintiff’s ability to work. This process produced an improper RFC and
ultimately an improper evaluation under the Grids.

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As a consequence, the court finds that the ALJ did not satisfy his affirmative duty to
“ensure that his decision is an informed decision based upon sufficient facts.” Brock v. Chater,
84 F.3d 726, 728 (5th Cir. 1996). Had the ALJ properly included all of plaintiff’s medically
determinable limitations in the RFC, he would have determined that plaintiff cannot perform
sedentary work, and therefore is disabled within the meaning of the Social Security Regulations.
As a matter of note, the Commissioner asserts that Newton does not apply to this case
even though the opinions of Dr. Castillo and Dr. Farmer are inconsistent with Dr. Adams’s
findings; because Dr. Adams was an examining physician, the Commissioner argues that the
ALJ was not under a duty to re-contact either of plaintiff’s treating physicians Dr. Castillo or Dr.
Farmer. Docket 21, p. 10. The court has reviewed Dr. Adams’s report and concludes that the
opinions of the three physicians are actually consistent with each other; consequently, if the ALJ
wanted to give less weight to the treating physician opinions, he was required to contact the
treating physicians to clarify the record. It appears that the ALJ picked only the portions of Dr.
Adams’s records that support a denial of benefits instead of considering the record as a whole
and, he interpreted Adams’s records to support limitations or a lack thereof that are found
anywhere else in the record.
Interestingly, the Commissioner makes much of plaintiff’s non-compliance in treating her
diabetes. However, the record clearly supports the fact that plaintiff does not have the financial
ability to obtain the prescriptions necessary to control her diabetes. Docket 10, p. 649. Wingo v.
Bowen, 852 F.2d 827 (5th Cir. 1988)(“When a claimant cannot afford prescribed treatment or
medicine and can find no way to obtain it, ‘the condition that is disabling in fact continues to be
disabling in law.’”). Plaintiff’s daughter testified that she works to help her mother pay the

9

electric bill, and her brother works to pay the rent. Docket 19, p. 9-10. She further testified that
plaintiff has received insulin through a reduced or free program and that she takes her insulin
when she is able to obtain it. Id. at 10. The court is not convinced that plaintiff’s noncompliance is of her own choice.
The court finds that the ALJ did not satisfy his affirmative duty to “ensure that his
decision is an informed decision based upon sufficient facts.” Brock v. Chater, 84 F.3d 726, 728
(5th Cir. 1996). The ALJ’s decision was not supported by substantial evidence and should be
vacated.
IV. DETERMINATION OF BENEFITS
In determining whether to reverse the Commissioner’s final decision and remand or to
grant benefits without further administrative review, the court must look to the completeness of
the record, the weight of the evidence in favor of the plaintiff, the harm to the claimant that
further delay might cause, and the effect of a remand delaying the ultimate receipt of benefits by
a deserving plaintiff. SOCIAL SECURITY LAW & PRACTICE, §55.77, p. 129. In this case, the
plaintiff has been very patient. She has been seeking benefits through the administrative
processes for over six years. The evidence in this case is clear. Both of plaintiff’s treating
physicians have provided opinions indicating that plaintiff is unable to perform even sedentary
work, and, as a result, plaintiff is determined to be disabled. The court holds that because the
evidence is conclusive, an award of benefits at this stage would be in the best interests of the
plaintiff’s health and welfare and will avoid further undue delay which would result upon
remand for additional review. The court directs that this case be remanded for the sole purpose
of determining the amount of benefits to be awarded to the plaintiff under the Act.

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V. PLAINTIFF’S REMAINING ARGUMENTS
Because the court has determined that the plaintiff is disabled under the Social Security
Act, and this action is being remanded for the sole purpose of determining the amount of benefits
to be awarded to the plaintiff under the Act, the court need not address the merits of the
plaintiff’s remaining arguments at this time.
VI. CONCLUSION
For the foregoing reasons, the court finds that the decision of the ALJ was not supported
by substantial evidence, that plaintiff is determined to be disabled and entitled to benefits under
the Social Security Act. This case is remanded for the sole purpose of determining the amount
of benefits to be awarded. A final judgment in accordance with this memorandum opinion will
issue this day.
SO ORDERED, this, the 18th day of June, 2013.

/s/ S. Allan Alexander
UNITED STATES MAGISTRATE JUDGE

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