Martin v. Colvin

Filing 16

MEMORANDUM OPINION AND ORDER denying 13 Motion for Summary Judgment and the decision of the Commissioner AFFIRMED. Signed by Magistrate Judge John C. Gargiulo on 6/6/17. (RLW)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
CANDACE MARTIN

PLAINTIFF

V.

CASE NO.: 1:16-cv-205-JCG

CAROLYN W. COLVIN,
Acting Commissioner of Social Security

DEFENDANT

MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF’S
MOTION FOR SUMMARY JUDGMENT AND AFFIRMING
THE DECISION OF THE COMMISSIONER
Pursuant to 42 U.S.C. § 405(g), Plaintiff Candace Martin seeks judicial
review of the decision of the Commissioner of the Social Security Administration
denying her application for disability insurance benefits (DIB) under Title II of the
Social Security Act and supplemental security income (SSI) under Title XVI of the
Act. The Commissioner found that Martin was not disabled, despite her severe
impairments of “essential hypertension, peripheral arterial disease, ischemic heart
disease, hypertensive vascular disease, [and] late effects of cerebrovascular disease
(cerebrovascular accident).” (ECF No. 10, at 14). Having reviewed the submissions
of the parties, the record, and relevant law, the Court finds that Martin’s Motion for
Summary Judgment (ECF No. 13) should be DENIED and the decision of the
Commissioner AFFIRMED.
I. Background
Martin was born in 1958. She received a certificate in medical billing and
coding in December 2012. She has not worked in this field but has looked for work.
Martin has been employed as a retail sales cashier clerk, casino cashier, and child

care worker. She lives with her mother and daughter. She and her daughter share
the responsibilities of caring for Martin’s elderly mother.
Martin underwent coronary artery bypass surgery on June 8, 2012, and a
right carotid endarterectomy on August 7, 2012. She was recommended to have a
left carotid endarterectomy, but she declined. On July 1, 2013, Martin suffered a
stroke. After the stroke, Martin went back to work as a retail cashier clerk.
According to Martin, she was fired a month later because she had difficulty with leg
pain and stocking shelves. She maintains that she is unable to work due to pain
that is primarily caused by standing and walking.
Martin protectively filed her application on September 27, 2013, alleging
disability since August 29, 2013, due to “a stroke, heart surgery, high blood
pressure, [and] high cholesterol.” (ECF No. 10, at 168). The agency denied Martin’s
applications, and she requested a hearing before an administrative law judge (ALJ),
which was held on January 8, 2015. On January 15, 2015, the ALJ issued a decision
finding Martin not disabled.
The ALJ utilized the five-step sequential evaluation process to find Martin
not disabled under the Social Security Act. See C.F.R. §§ 404.1520(a)(4)(i)-(v),
416.920(a)(4)(i)-(v).1 At step one, the ALJ found that Martin had not engaged in

A claimant has the burden of proving she has a medically determinable physical or
mental impairment lasting at least twelve months that prevents her from engaging
in substantial gainful activity. See 42 U.S.C. ' 423(d)(1)(A). The ALJ uses a five-step
sequential process to evaluate claims of disability and decides whether: (1) the
claimant is not working in substantial gainful activity; (2) the claimant has a severe
impairment; (3) the claimant=s impairment meets or equals a listed impairment in
Appendix 1 of the Regulations; (4) the impairment prevents the claimant from doing
1

substantial gainful activity since her alleged onset date of August 29, 2013. At step
two, the ALJ found that Martin had the severe impairments of “essential
hypertension, peripheral arterial disease, ischemic heart disease, hypertensive
vascular disease, [and] late effects of cerebrovascular disease (cerebrovascular
accident).” Id. at 14. At step three, the ALJ determined that Martin did not have an
impairment or combination of impairments that met or medically equaled the
severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix
1, for presumptive disability.
Next, the ALJ determined that Martin retained the residual functional
capacity (RFC) to perform light work as defined in 20 C.F.R. 404.1567(b), except she
could not be exposed to unprotected heights or hazardous machinery. Id. at 16. At
step four, the ALJ, relying on the testimony of a vocational expert (VE), concluded
that Martin was able to perform her past relevant work as a retail sales cashier
clerk, casino cashier, and child care worker, each as they were actually performed
by her and as generally performed in the national economy. Id. at 22. Martin was
therefore found not disabled from the alleged onset date of August 29, 2013,
through the date of the ALJ’s decision.
The Appeals Council denied Martin’s request for review, making the ALJ’s
January 15, 2015, decision the Commissioner’s final decision for purposes of judicial

past relevant work; and (5) the impairment prevents the claimant from doing any
other work. 20 C.F.R. ' 404.1520.

review. Having exhausted her administrative remedies, Martin commenced the
present action by Complaint filed June 15, 2016. (ECF No. 1). Martin moved for
summary judgment on November 28, 2016. (ECF No. 13).
II. Standard of Review
A review of the Commissioner's denial of benefits is limited to two inquiries:
(1) whether the decision is supported by substantial evidence in the record as a
whole, and (2) whether the Commissioner applied the correct legal standards. Perez
v. Barnhart, 415 F.3d 457, 461 (5th Cir. 2005). Substantial evidence must be more
than a mere scintilla, but it need not be a preponderance. Leggett v. Chater, 67 F.3d
558, 564 (5th Cir. 1995).
The Court's role is to scrutinize the entire record to ascertain whether
substantial evidence supports the Commissioner's findings. Hollis v. Bowen, 837
F.2d 1378, 1383 (5th Cir. 1988). The Court may not reweigh the evidence or
substitute its judgment for that of the Commissioner. Id. This is so, even if the
Court determines that the evidence could allow for a different finding. Strickland v.
Harris, 615 F.2d 1103, 1106 (5th Cir. 1980). A finding of no substantial evidence is
appropriate only if there is “a conspicuous absence of credible choices or no contrary
medical evidence.” Johnson v. Bowen, 864 F.2d 340, 343-44 (5th Cir. 1988).
III. Discussion
Martin submits that the ALJ erred in two ways: (1) by failing to consider
whether she had an impairment or combination of impairments that met or equaled
the criteria for a neurological disorder, namely Listings 11.04 and 11.18; and (2) by

assigning an RFC that is not supported by substantial evidence. Id. at 13. Martin
asserts that her case should be remanded to the ALJ for a proper evaluation of
whether she meets a neurological disorder Listing.
The Commissioner responds by submitting that “Plaintiff did not meet the
requirements for either Listing 11.04 or 11.18, and therefore no harmful error
occurred due to the absence of a specific discussion of the Listing section by the
ALJ.” (ECF No. 15, at 8). The Commissioner asserts that the ALJ’s decision is
supported by “substantial evidence, including the unremarkable examinations
noted . . ., Plaintiff’s activities of daily living, and the opinions from non-examining
State agency physicians, Timothy Bessent, M.D., and Carol Kossman, M.D., who
both reviewed the evidence of record and opined that Plaintiff could perform light
work.” Id. at 12.
A.

Neurological Disorder Listings 11.04 and 11.18
“The regulations recognize that certain impairments are so severe that they

prevent a person from pursuing any gainful work.” Heckler v. Campbell, 461 U.S.
458, 460 (1983). At step three, the Commissioner considers the medical severity of
the claimant’s impairment(s) and determines whether the impairment(s) meets or
equals the criteria for a listed impairment in 20 C.F.R. Part 404, Subpart P,
Appendix 1. See 20 C.F.R. § 416.920(a)(4)(iii), (d). A claimant who establishes that
she suffers from an impairment listed in Appendix 1 will be considered disabled
without further inquiry. Id. The Listings
are descriptions of various physical and mental illnesses
and abnormalities, most of which are categorized by the

body system they affect. Each impairment is defined in
term of several specific medical signs, symptoms, or
laboratory test results. For a claimant to show that his
impairment matches a listing, it must meet all of the
specified medical criteria. An impairment that manifests
only some of those criteria, no matter how severely, does
not qualify.
Sullivan v. Zebley, 493 U.S. 521, 529 (1990).
The burden of proof to meet a listing is “demanding and stringent.” Falco v.
Shalala, 27 F.3d 160, 162 (5th Cir. 1994). The responsibility for determining
whether a claimant meets a listing is reserved to the Commissioner. 20 C.F.R. §
416.927(e)(2). Listings 11.04 and 11.18 provide:
11.04 Vascular insult to the brain, characterized by
A, B, or C:
A. Sensory or motor aphasia resulting in ineffective speech
or communication (see 11.00E1) persisting for at least 3
consecutive months after the insult.
OR
B. Disorganization of motor function in two extremities
(see 11.00D1), resulting in an extreme limitation (see
11.00D2) in the ability to stand up from a seated position,
balance while standing or walking, or use the upper
extremities, persisting for at least 3 consecutive months
after the insult.
OR
C. Marked limitation (see 11.00G2) in physical functioning
(see 11.00G3a) and in one of the following areas of mental
functioning, both persisting for at least 3 consecutive
months after the insult:
1.
2.

Understanding, remembering, or applying
information (see 11.00G3b(i)); or
Interacting with others (see 11.00G3b(ii)); or

3.
4.

Concentrating, persisting, or maintaining
pace (see 11.00G3b(iii)); or
Adapting
or
managing
oneself
(see
11.00G3b(iv)).

...
11.18 Traumatic brain injury, characterized by A or
B:
A. Disorganization of motor function in two extremities
(see 11.00D1), resulting in an extreme limitation (see
11.00D2) in the ability to stand up from a seated position,
balance while standing or walking, or use the upper
extremities, persisting for at least 3 consecutive months
after the injury.
OR
B. Marked limitation (see 11.00G2) in physical functioning
(see 11.00G3a), and in one of the following areas of mental
functioning, persisting for at least 3 consecutive months
after the injury:
1.
2.
3.
4.

Understanding, remembering, or applying
information (see 11.00G3b(i)); or
Interacting with others (see 11.00G3b(ii)); or
Concentrating, persisting, or maintaining
pace (see 11.00G3(iii)); or
Adapting
or
managing
oneself
(see
11.00G3b(iv)).

20 C.F.R. Part 404, Subpart P, Appendix 1, §§ 11.04, 11.18.
Plaintiff submits that “[t]he evidence of record demonstrates that subsequent
to her stroke, Martin continued to experience disorganized motor function in her
right arm and leg, and marked limitation in mental functioning that persisted for at
least 3 consecutive months.” (ECF No. 14, at 11). Martin’s brief states:
Martin reported that one month after her stroke, she
attempted to return to work, but she was fired because she

could not walk back and forth to stock shelves. Martin also
testified that after her stroke, she had increasing difficulty
with her legs, and that walking causes pain and numbness
in her legs and feet.
While Martin testified that she could perform tasks such
as doing laundry, going grocery shopping, and caring for
her elderly mother, she can generally only do so with the
help of her daughter.
Martin further reported on October 21, 2013, that her
impairments affected her ability to lift, squat, stand, walk,
sit, talk, climb stairs, see, and use her hands. Martin noted
that she experienced pain upon standing or walking, could
not sit more than 15 minutes due to pain, had difficulty
holding things, and slurred words if she talked too much.
Id. at 12.
Martin’s allegations are based almost entirely on her own subjective
complaints. The extent of impairment alleged by Martin is not corroborated by
objective medical evidence, as the ALJ found. A finding that a claimant’s medical
condition meets a listing may not be made without objective medical evidence that
satisfies the specific listing criteria – neither subjective statements nor unsupported
assertions suffice. Sullivan, 493 U.S. at 530-32; 20 C.F.R. §§ 404.1525(c), 416.925(c);
SSR 96-5p, 1996 WL 374183, at *3 (July 2, 1996).
Plaintiff admits that there is not objective medical evidence showing that she
meets all of the criteria for Listings 11.04 and 11.18 but posits that had the ALJ
fully and fairly developed the record, “he could have certainly adduced evidence that
might have altered the result and demonstrated that Martin met the criteria of
Appendix 1 Listing 11.04 or 11.18.” (ECF No. 14, at 12-13). The ALJ is not required
to order additional evidence when the record is sufficient to establish whether the

claimant is disabled. The ALJ’s ability to further develop the record must be
balanced against the fact that it is Plaintiff’s burden to “present medical findings
equal in severity to all the criteria for the one most similar listed impairment.”
Zebley, 493 U.S. at 531 (emphasis in original); 20 C.F.R. § 416.920(d).
Both parties rely on Audler v. Astrue, 501 F.3d 446, 448 (5th Cir. 2007). This
suit does not present the problem identified in Audler of “a bare conclusion [ ]
beyond meaningful judicial review.” Id. at 448. Here, even though the ALJ did not
reference Listings 11.04 and 11.18 in her step three analysis, she did, in her RFC
analysis, discuss an absence of evidence of lasting neurological impairment. The
ALJ’s decision notes that on the day of her stroke, July 1, 2013, Plaintiff “did not
have any other neurological deficits” beyond “some slurred speech,” though “for the
most part, she was able to converse easily and understandable, with some
intermittent expressive aphasia, and sometimes had difficulty finding a word, and
her blood pressure was elevated.” (ECF No. 10, at 19).
“[A]pproximately three months following her stroke, the claimant did not
have any complaints and she was doing well. She only requested medication refills
for cholesterol and hypertension. Review of symptoms was normal.” Id. at 20. The
ALJ’s decision notes that on April 25, 2014, and August, 4, 2014, all examinations,
including neurological, were normal, with no findings of functional limitation. Id.
The CFHC records refute Martin’s allegation that she experienced neurological
issues “for at least 3 consecutive months” following her July 1, 2013 stroke, as
required by both Listings 11.04 and 11.18.

The existence of substantial evidence to support the ALJ’s decision is not cast
into doubt because the ALJ did not expressly mention Listings 11.04 or 11.18. The
medical records from Coastal Family Health Center (CFHC) for more than a year
following Martin’s stroke document regular examinations where Martin showed a
normal gait, normal motor skills, normal mental functioning, and normal
neurological functioning. Id. at 319-61. Martin seeks to minimize the significance of
these records, but the Court may not reweigh the evidence. The unremarkable
medical examinations following Plaintiff’s stroke belie a finding that Martin met
the “demanding and stringent” criteria of a neurological disorder Listing.
The ALJ found Plaintiff’s position also contradicted by her daily activities.
Though Martin stated she received help with household chores, she acknowledged
that she was able to perform them, as well as run errands, drive, cook, pay bills,
read, and play computer games. Id. at 21. The ALJ was especially persuaded by a
October 13, 2014, note in the records of CFHC where Plaintiff reported that she was
exercising by walking three to four days a week for a total of 10-15 hours (ECF No.
10, at 340). This reported exercise contradicted Plaintiff’s allegation that she could
no longer work because she could not stand and walk for long periods.
Even if the ALJ erred by failing to specifically address Listings 11.04 and
11.18, the error was harmless because Plaintiff has not shown that her substantial
rights were affected. See Audler, 501 F.3d at 448. To show that substantial rights
were affected “typically requires a claimant to demonstrate that his impairment
satisfies the criteria of a particular listing.” Pickett v. Colvin, Civil Action No. 3:15-

cv-700-TSL-LRA, 2017 WL 439978, *2 (S.D. Miss. Jan. 6, 2017), rep. and rec.
adopted, 2017 WL 422812 (S.D. Miss. Jan. 31, 2017). Martin acknowledges that
there is not objective evidence to satisfy all criteria for the Listings. (ECF No. 14, at
12-13). There is not medical evidence of (1) sensory or motor aphasia resulting in
ineffective speech for at least three consecutive months, (2) disorganization of motor
function in two extremities for at least 3 consecutive months, or (3) limitation in
physical and mental functioning for at least 3 consecutive months. The ALJ was not
required to develop the record further. Remand is not warranted. See Morris v.
Bowen, 864 F.2d 333, 335 (5th Cir. 1988); Alexander v. Astrue, 412 F. App’x 719, 722
(5th Cir. 2011).
B.

Residual Functional Capacity
Martin contends that the ALJ’s determination that she has the RFC to

perform light work as defined by 20 C.F.R. § 404.1567(b) and 416.967(b) is not
supported by substantial evidence. However, the evidence that the ALJ utilized to
reach her decision has been discussed. The ALJ did not fully credit Martin’s
testimony because her claims of disabling limitations did not correspond with the
medical records showing normal examinations following Martin’s stroke; and did
not correspond with Martin’s daily activities. The inconsistencies between the
medical records and Plaintiff’s reported activities provide substantial evidence
supporting the ALJ’s determination.

IT IS THEREFORE ORDERED AND ADJUDGED that Plaintiff Candace
Martin’s Motion for Summary Judgment (ECF No. 13) is DENIED and the decision
of the Commissioner AFFIRMED.
SO ORDERED, this the 6th day of June, 2017.

s/ John C. Gargiulo

JOHN C. GARGIULO
UNITED STATES MAGISTRATE JUDGE