Winslow v. Colvin

Filing 15

ORDER granting 12 Motion for Summary Judgment. A separate judgment will be entered. Signed by Magistrate Judge F. Keith Ball on 2/8/17 (dfk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
DAVID A. WINSLOW

PLAINTIFF

VS.

CIVIL ACTION NO. 1:15cv390-FKB

CAROLYN W. COLVIN,
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION

DEFENDANT

ORDER
I. Introduction
David A. Winslow filed for supplemental security income on April 15, 2014. After
his application was denied both initially and upon reconsideration, he requested and
was granted a hearing before an ALJ. The hearing was held on June 23, 2015, and on
August 5, 2015, the ALJ issued a decision finding that Winslow is not disabled. The
appeals council denied review on September 25, 2015. Winslow now brings this appeal
pursuant to § 205(g) of the Social Security Act, 42 U.S.C. § 405(g). Presently before
the Court is his motion for summary judgment [12]. Having considered the memoranda
of the parties and the administrative record, the Court concludes that the motion should
granted, the decision of the Commissioner reversed, and this matter remanded to the
Commissioner.
II. Facts and Evidence before the Commissioner
Winslow was born on August 21, 1971, and was 43 years of age at the time of
the decision of the ALJ. He completed the eleventh grade in special education and has
past relevant work experience as a sheet metal worker. Winslow alleges disability due

to obesity, diabetes, atrial fibrillation, chronic kidney disease, hypertension, low back
pain, knee pain, leg pain, sleep apnea, and depression.
The record indicates that Winslow suffers from several chronic conditions. He
has a history of atrial fibrillation and hypertension, for which he takes Diltiazem, Digoxin,
Xarelto, Lopressor, and Lisinopril. He also is diabetic. Winslow suffers from sleep
apnea and uses a CPAP machine. He is obese; at the time of his application, his
weight was approximately 430 pounds, see R. 306, [9] at 316, and he weighed 374
pounds at the time of the hearing, R. 34, [9] at 39. He has a history of ulcers and open
wounds on his lower extremities: In February of 2013, he was hospitalized and treated
for lower extremity cellulitis, and records in April and May of 2014, September of 2014,
October of 2014, and February of 2015 indicate the presence of wounds. R. 373-74, [9]
at 384-85; R. 393, [9] at 404; R. 407, [9] at 418; R. 418, [9] at 430. Winslow has also
experienced intermittent gastrointestinal problems. Following complaints of rectal
bleeding and abdominal pain, he underwent a colonoscopy and EGD with biopsy in May
of 2014. R. 300-302, [9] at 310-12. Results showed minimal gastritis. Id. In May of
2014 he underwent laparoscopic gall bladder surgery without complications. R. 314, [9]
at 324. A note from a September 12, 2014 office visit indicates that he was continuing
to experience abdominal pain and bleeding. R. 399, [9] at 410.
Winslow has a history of kidney disease and problems with fluid retention. On
September 12, 2014, his treating physician, Dr. Rowe Crowder, noted that Winslow was
in acute renal failure and advised him to drink more water. R. 399-400, [9] at 410-11.
Four days later, Winslow presented to the emergency room complaining of shortness of
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breath and edema. R. 451, [9] at 463. He was treated with Lasix IV. Id. Impression
included bilateral lower extremity edema, acute renal failure secondary to dehydration,
and hyponatremia. Id. In a progress note dated October 7, 2014, Dr. Crowder noted
that Winslow was continuing to experience problems with decreased urine output and
that he had a mass on his left kidney. R. 407, [9] at 418. Winslow went to the
emergency room again in January of 2015, where his diagnoses included chronic
kidney disease, decreased urination, hematuria, left flank pain, uremia, and weakness.
R. 434, [9] at 446. In February of 2015, he underwent surgery for renal cell carcinoma
of the left kidney. R. 487, [9] at 499. Discharge diagnoses were acute renal failure;
renal cell carcinoma; chronic kidney disease, stage three (moderate); hypertension; and
a leg ulcer. R. 418, [9] at 430. Winslow was evaluated by a nephrologist, Dr. Erica
Hopkins, in June of 2015. R. 507-510, [9] at 519-22. Dr. Hopkins likewise diagnosed
him with chronic kidney disease, stage three (moderate). R. 509, [9] at 521.
Winslow has complained of and undergone evaluation for pain in several joints.
X-rays performed on June 24, 2014, showed mild degenerative changes of the lumbar
spine and mild tricompartmental osteoarthritis in the right knee. R. 343-44, [9] at 35354. In July of 2015, he was evaluated by Dr. Elliot Nipper, an orthopedist, who
diagnosed him with bilateral knee varus degeneration. R. 517, [9] at 529. Dr. Nipper
noted that the only treatment available was physical therapy and bracing, as any other
intervention was contraindicated by Winslow’s other medical conditions. Id.1

1

It does not appear that Dr. Nipper’s records were submitted to the ALJ before her decision. They were,
however, submitted to the Appeals Council.

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In September of 2014, Winslow began treatment at Gulf Coast Mental Health
Center for complaints of depression and feelings of helplessness and hopelessness.
Initial assessment by a therapist was major depressive disorder, severe, single episode,
and a global assessment of functioning of 50. R. 382, [9] at 393 He was seen monthly
thereafter and was treated with Effexor, Seroquel, and Restoril. The most recent case
notes, from May of 2015, indicate that he was experiencing mood swings and problems
sleeping. R. 499, [9] at 511.
Winslow has undergone two consultative examinations. Dr. Michael
Zakaras performed a comprehensive mental evaluation of Winslow on June 9, 2014. At
the exam, Winslow reported that he experienced sadness, daily crying spells, and
problems sleeping. R. 332, [9] at 342. His daily activities were limited to watching
television, sometimes walking a short distance after supper, and trying to attend church
once a week. R. 331-32, [9] at 341-42. He indicated that he had suicidal ideations at
least once a week and that he had made one suicide attempt approximately six months
earlier. R. 332, [9] at 342. Winslow’s interpretation of proverbs was poor; otherwise, his
responses to questions in the the mental status portion of the exam were unremarkable.
Id. Dr. Zakaras opined that the most appropriate diagnosis would appear to be
depressive disorder NOS. R. 333, [9] at 343.
Dr. Syed Sadiq performed a consultative physical examination of Winslow on
June 24, 2014. Dr. Sadiq noted that Winslow was morbidly obese (418 pounds), was
unable to take his shoes off, experienced shortness of breath on walking a few steps,
and used crutches. R. 336, [9] at 346. His assessment of Winslow’s residual functional
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capacity was that Winslow could carry less than 10 pounds occasionally, that he could
stand and walk less than two hours in an eight-hour work day with no limitations on
sitting, that he could climb, balance, stoop, kneel, crouch and/or crawl occasionally as
tolerated, and that he had no manipulative restrictions. R. 339, [9] at 349. Dr. Sadiq
also stated that the crutches used by Winslow were objectively necessary. R. 338, [9]
at 348.
At the hearing, Winslow testified that his daily activities consist primarily of sitting
in a recliner and watching television. R. 41, [9] at 46. He testified that he tries to get up
and walk a little, but he can walk only about five feet without crutches before his knees
give out. R. 40, [9] at 45. He stated that he has to make himself get up and go to the
bathroom, because otherwise he can go all day without urinating. R. 41, [9] at 46.
Winslow stated that his most serious problem, in terms of his inability to work, is joint
pain. R. 32, [9] at 37. He explained that previously he had taken Naproxen for his joint
pain but that he can no longer take it because of his kidney disease. Id. Winslow’s wife
testified that Winslow “can’t do anything” and that she has to help him in and out of the
bed and onto and off of a toilet if it does not have handicap rails. R. 42, [9] at 47. She
stated that he is unable to do any chores around the house because of his inability to
walk. Id. Ms. Winslow testified that her husband was depressed most of the time. R.
43, [9] at 48. She also corroborated his testimony that he can go all day without
urinating, and she stated that the swelling in his feet prevents him from being able to
wear regular shoes. R. 42-43, [9] at 47-48.

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III. The Decision of the ALJ
In her decision, the ALJ worked through the familiar sequential evaluation
process for determining disability.2 She found that Winslow has the severe impairments
of obesity, low back pain, diabetes, atrial fibrillation, and degenerative changes of the
foot. R. 13, [9] at 18.

She found that Winslow’s hypertension, history of abdominal

pain, sleep apnea on CPAP, history of gastrointestinal bleed, kidney cancer status-post
nephrectomy, and depression were not severe impairments. R. 13-15, [9] at 18-20. At
step three, the ALJ determined that Winslow does not have an impairment or
combination of impairments that meets or medically equals an impairment listed in 20
C.F.R. Part 404, Subpart P, Appendix 1. R. 15-16, [9] at 20-21. The ALJ found that

2
In evaluating a disability claim, the ALJ is to engage in a five-step sequential process, making the
following determinations:

(1)
whether the claimant is presently engaging in substantial gainful activity (if so, a finding of
“not disabled” is made);
(2)

whether the claimant has a severe impairment (if not, a finding of “not disabled” is made);

(3)
whether the impairment is listed, or equivalent to an impairment listed, in 20 C.F.R. Part
404, Subpart P, Appendix 1 (if so, then the claimant is found to be disabled);
(4)
whether the impairment prevents the claimant from doing past relevant work (if not, the
claimant is found to be not disabled); and
(5)
whether the impairment prevents the claimant from performing any other substantial
gainful activity (if so, the claimant is found to be disabled).
See 20 C.F.R. § 416.920. The analysis ends at the point at which a finding of disability or non-disability is
required. The burden to prove disability rests upon the claimant throughout the first four steps; if the
claimant is successful in sustaining his burden through step four, the burden then shifts to the
Commissioner at step five. Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995).

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Winslow has the residual functional capacity (RFC) to perform the full range of
sedentary work as defined by 20 C.F.R. § 416.967(a). R. 16-21, [9] at 21-26. The ALJ
considered Winslow’s subjective allegations of limitations but found that they were not
fully credible in light of the lack of objective and clinical evidence. R. 17-20, [9] at 2226. At step four, the ALJ found that Winslow is not capable of performing his past
relevant work. R. 21, [9] at 26. At step five, the ALJ found, based upon application of
Rule 201.25 of the Medical-Vocational Guidelines, 20 C.F.R. Part 4040, Subpart P,
Appendix 2, that Winslow is not disabled. R. 22, [9] at 27.
Analysis
In reviewing the Commissioner’s decision, this court is limited to an inquiry into
whether there is substantial evidence to support the findings of the Commissioner and
whether the Commissioner applied the correct legal standards. Muse v. Sullivan, 925
F.2d 785, 789 (5th Cir. 1991); Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990).3 In
his memorandum, Winslow makes the following arguments: (1) That the ALJ erred in
assessing the severity of Winslow’s impairments at step two; (2) that the ALJ’s RFC
determination is not supported by substantial evidence; (3) that the ALJ’s credibility
determination is not supported by substantial evidence; and (4) that the ALJ’s step five
determination is not supported by substantial evidence. The Court concludes that at

3

“To be substantial, evidence must be relevant and sufficient for a reasonable mind to accept it as
adequate to support a conclusion; it must be more than a scintilla but it need not be a preponderance. . .
.” Anderson v. Sullivan, 887 F.2d 630, 633 (5th Cir. 1989) (quoting Fraga v. Bowen, 810 F.2d 1296, 1302
(5th Cir. 1987)). If the Commissioner’s decision is supported by substantial evidence, it 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 (1971)), even if the court finds that the preponderance of the evidence is against the
Commissioner’s decision, Bowling v. Shalala, 36 F.3d 431, 434 (5th Cir. 1994).

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least one portion of this first argument is determinative and requires remand; thus, the
remaining arguments are not addressed.
As Winslow points out in his memorandum, the ALJ never identified Winslow’s
knee pain as an impairment and never made any findings concerning it. Indeed, other
than in a passage recounting Winslow’s testimony, Winslow’s knee condition is
mentioned nowhere in the opinion. It is well established in this circuit that “the ALJ
must analyze both the ‘disabling effect of each of the claimant’s ailments’ and the
‘combined effect of all of these impairments.’” See Loza v. Apfel, 219 F.3d 378, 393 (5th
Cir. 2000) (quoting Fraga v. Bowen, 810 F.2d 1296, 1305 (5th Cir. 1987)). While the
ALJ in this case may have had Winslow’s knee condition in mind when she made
references to joint pain, or when she determined that he did not need crutches for
ambulation, there is no way to determine whether this is the case. Because it is not
clear how or even whether the ALJ evaluated Winslow’s knee condition, meaningful
judicial review of the ALJ’s decision on this point is not possible. Furthermore, the error
is not harmless: X-rays showed osteoarthritis in Plaintiff’s right knee, and as the ALJ
herself states in the opinion, “[s]omeone with obesity and arthritis affecting a weightbearing joint may have more pain and limitation than might be expected from arthritis
alone.” R. 16, [9] at 21. It is clear from Winslow’s testimony that he believes his knee
pain to be one of the most significant reasons for his alleged inability to work.
Therefore, remand is necessary for the ALJ to properly evaluate Winslow’s allegations
of knee pain.

8

Another of Winslow’s arguments regarding the ALJ’s findings at step two bears
mention and confirms the Court’s conclusion that this matter should be remanded.
Winslow attacks as lacking in substantial evidence the ALJ’s finding that Winslow’s
chronic kidney disease is not a severe impairment. In this circuit, the standard for
severity is a low one: An impairment can be considered non-severe “only if 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.” Stone v. Heckler, 752 F.2d 1099, 1101 (5th Cir. 1985). The medical
record in this case indicates that Winslow has experienced ongoing problems with fluid
retention and fluid overload as well as non-healing wounds and ulcers of the lower
extremities– conditions likely connected with his renal problems.4 While the ALJ’s
finding on this issue might not, in isolation, warrant reversal, when it is considered along
with her failure to specifically address Winslow’s knee problems, it raises further doubt
as to whether she evaluated the effect of all of Winslow’s impairments, severe and nonsevere, both separately and in combination with one another. Upon remand, the ALJ
should reevaluate all of Winslow’s impairments and their effect, both separately and in
combination with one another, on his ability to work.

4

Kidney damage can result in the leakage of protein into the urine. The reduction of the amount of protein
in the blood causes fluid from the bloodstream to leak out into the tissues.
https://www.kidney.org/kidneydisease/aboutckd. Fluid volume overload frequently occurs in patients with
chronic kidney disease. Volume Overload and Adverse Outcomes in Chronic Kidney Disease, J Am Heart
Assoc. 2015 May 5;4(5),https://www.ncbi.nlm.nih.gov/pubmed/25944876. Severe lower extremity edema
can interfere with blood flow and result in non-healing lesions and ulcers. http://www.webmd.com/heartdisease/heart-failure/edema-overview#2.

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Conclusion
For these reasons, Winslow’s motion is granted, the decision of the
Commissioner is reversed. and this matter is remanded to the Commissioner for
reevaluation of all the evidence in accordance with this opinion. A separate judgment
will be entered.
So ordered, this the 8th day of February, 2017.

s/ F. Keith Ball
United States Magistrate Judge

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