Pope v. Astrue
Filing
20
ORDER granting in part 14 Motion to Affirm; adopting 17 Report and Recommendations; this case is remanded to the Commissioner for additional findings as set forth herein. Signed by Honorable David C. Bramlette, III on 3/31/2014 (ECW)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
WILLIAM H. POPE
PLAINTIFF
VS.
CIVIL ACTION NO. 3:13-cv-870(DCB)(MTP)
MICHAEL J. ASTRUE 1
Commissioner of Social Security Administration
DEFENDANT
ORDER ADOPTING REPORT AND RECOMMENDATION
This cause is before the Court pursuant to the plaintiff’s
brief
in
support
of
judicial
review
(docket
entry
11);
the
Commissioner’s motion to affirm (docket entry 14); the plaintiff’s
response in opposition to defendant’s motion to affirm (docket
entry 16); the Report and Recommendation (docket entry 17) of
United States Magistrate Judge Michael T. Parker, which recommends
that the Commissioner’s motion to affirm be granted in part, and
that this matter be remanded in part to the Commissioner for
further findings; the Commissioner’s objection thereto (docket
entry 18); and the plaintiff’s response to the Commissioner’s
objection (docket entry 19).
Having carefully considered the
pleadings and the applicable law, and being fully advised in the
premises, the Court finds that the Report and Recommendation of the
Magistrate Judge should be adopted for the reasons herein set
forth.
On
1
February
9,
2010,
the
plaintiff
filed
a
Title
II
Effective February 14, 2013, Carolyn W. Colvin became the
acting Commissioner of the Social Security Administration.
application for a Period of Disability and Disability Benefits
beginning May 16, 2007.
The claim was initially denied and again
denied on reconsideration, which led the plaintiff to request a
hearing before an Administrative Law Judge(“ALJ”).
The plaintiff
received his hearing on February 3, 2011, and ALJ Willie Rose
rendered his decision to deny the Plaintiff’s claim on March 1,
2011.
The plaintiff proceeded to file his application to the
Appeals Council on April 14, 2011, and on April 18, 2012, the
Appeals Council informed the plaintiff that his appeal had been
denied.
The plaintiff filed his claim before this Court on June
15, 2012.
The ALJ’s decision of March 1, 2011, found that the plaintiff
was not disabled. At Step One of the five-step evaluation process,
the ALJ found that the plaintiff had not engaged in any substantial
gainful activity since May 16, 2007, the alleged onset date.
At
Step Two, he found that Plaintiff suffers from the following severe
impairments: degenerative disc disease of the lumbar spine, bipolar
disorder, and a history of opioid dependency.
At Step Three, the ALJ determined that the plaintiff does not
have an impairment, or combination of impairments, that meets or
medically equals Listing 1.04, 12.04, or 12.09.
Next, the ALJ
examined the plaintiff’s Residual Functional Capacity (“RFC”) and
found that he retained the capacity to lift and/or carry twenty
pounds occasionally and ten pounds frequently, sit for six hours in
2
an eight-hour work day, stand and/or walk for six hours in an
eight-hour work day, and perform occasional climbing, balancing,
stooping, kneeling, crouching, and crawling. Additionally, the ALJ
noted that the plaintiff can perform simple, repetitive tasks, and
can
carry
out
limitations.
detailed
instructions
and
tasks
with
moderate
Finally, the ALJ found that the Plaintiff can
occasionally, but not frequently, work with the general public,
have occasional contact with co-workers and supervisors, and become
accustomed to occasional and gradual changes in the work place,
rather
than
frequent
or
dramatic
changes.
In
making
this
determination, the ALJ considered Plaintiff’s symptoms and the
extent to which they can be reasonably accepted as consistent with
the
objective
medical
evidence
and
other
evidence,
and
also
considered opinion evidence.
At Step Four, the ALJ found that the plaintiff was unable to
perform
any
past
relevant
work,
including
that
of
representative, a waiter, and a psychiatric technician.
a
sales
Finally,
at Step Five, the ALJ concluded that the plaintiff could perform a
significant number of jobs in the national economy.
The ALJ based
this conclusion on Plaintiff’s age, educational background, work
experience, RFC Assessment, and testimony from the vocational
expert.
and
a
These jobs included a silverware wrapper, a mail sorter,
textile
sorter.
Accordingly,
plaintiff was not disabled.
3
the
ALJ
found
that
the
This Court’s review of the Commissioner’s decision is limited
to inquiry into whether there is substantial evidence to support
the Commissioner’s findings and whether the correct legal standards
were applied in evaluating the evidence. Hollis v. Bowen, 837 F.2d
1378, 1382 (5th Cir. 1988).
The Court may not re-weigh the
evidence, try the issues de novo, or substitute its judgment for
the Commissioner’s.
The issue in this case is whether the ALJ’s Step Three
determination was erroneous and contrary to law.
The plaintiff
argues that the record supports a finding that the plaintiff’s
mental impairments meet or medically equal Listing 12.04, which
provides:
12.04 Affective Disorders: Characterized by a disturbance
of mood, accompanied by a full or partial manic or
depressive syndrome. Mood refers to a prolonged emotion
that colors the whole psychic life; it generally involves
either depression or elation.
The ALJ concluded that the plaintiff did not meet the requirements
of Listing 12.04.
In his Report and Recommendation, Magistrate
Judge Parker finds there is sufficient evidence to support the
ALJ’s findings, and the Court adopts this finding for the reasons
set forth therein.
The plaintiff also argues that he meets the criteria for
Listing 1.04(A)(disorders of the spine):
1.04 Disorders of the spine (e.g., herniated nucleus
pulposus,
spinal
arachnoiditis,
spinal
stenosis,
osteoarthritis,
degenerative
disc
disease,
facet
arthritis, vertebral fracture), resulting in compromise
4
of a nerve root (including the cauda equina) or the
spinal cord. With:
A. Evidence of nerve root compression characterized by
neuro-anatomic distribution of pain, limitation of motion
of the spine, motor loss (atrophy with associated muscle
weakness or muscle weakness) accompanied by sensory or
reflex loss and, if there is involvement of the lower
back, positive straight-leg raising test (sitting and
supine) . . . .
The
ALJ
also
concluded
that
the
plaintiff
did
not
meet
the
requirements of Listing 1.04(A).
The plaintiff argues that the ALJ’s bare statement that
“Specific consideration was given to Listing 1.04, disorders of the
spine,” with no explanation, was clearly deficient and contrary to
law.
See Audler v. Astrue, 501 F.3d 446 (5th Cir. 2007).
In his Report and Recommendation, Magistrate Judge Parker
finds that the ALJ summarily concluded that the plaintiff did not
have an impairment or combination of impairments that met or
medically equaled Listing 1.04(A) with no explanation of evidence
to support his conclusion, making it impossible for the court to
determine whether the ALJ’s decision is supported by substantial
evidence.
The Magistrate Judge notes that the court is not
concluding that the ALJ’s decision is not supported by substantial
evidence, but that it is simply unclear whether his decision is
supported
by
substantial
evidence
since
no
explanation
was
provided.
Furthermore, the Magistrate Judge finds that the ALJ’s
failure to provide an explanation or evidence to support his
decision was not harmless error.
5
Magistrate Judge Parker notes that the ALJ found that the
plaintiff suffers from degenerative disc disease of the lumbar
spine, a severe impairment.
Furthermore, the plaintiff cited to
medical records reflecting a positive bowstring sign, bilaterally,
in
January
of
2010.
The
plaintiff
asserts
that
a
bowstring sign can indicate nerve root impingement.
positive
The record
also reveals moderate limitation of motion in the plaintiff’s
lumbar
region,
diminished
sensation
to
right
foot,
moderate
weakness in left foot, and prominent mechanical findings in the low
back indicating nerve root irritation.
The record also indicates
positive straight leg tests in January of 2010.
The Report and Recommendation concludes that the plaintiff has
presented
prima
facie
evidence
criteria for Listing 1.04(A).
substantially
affected
by
indicating
that
he
meets
the
Thus, the plaintiff’s rights were
the
ALJ’s
failure
to
provide
an
explanation for his determination at Step Three that the plaintiff
failed to meet the requirements of Listing 1.04(A).
Accordingly,
Magistrate Judge Parker recommends that this case be remanded to
the Commissioner for additional proceedings and an explanation
regarding the previous finding at Step Three that the plaintiff
does not have an impairment, or combination of impairments, that
meets or medically equals Listing 1.04.
See Audler, 501 F.3d at
448.
In response to the Report and Recommendation, the Commissioner
6
asserts that substantial evidence supports the ALJ’s decision.
However,
the
issue
is
whether
the
ALJ
offered
sufficient
explanation of the evidence to support his conclusion.
The Report
and Recommendation finds that he did not, making it impossible for
the court to determine whether the decision is supported by
substantial evidence. The Court recognizes that it is not required
to afford deference to the magistrate judge’s conclusions, but it
is obligated to afford the ALJ’s decision deference. Nevertheless,
as Magistrate Judge Parker noted, the court is not concluding that
the ALJ’s decision is not supported by substantial evidence, but
that it is simply unclear whether his decision is supported by
substantial evidence since no explanation was provided.
Accordingly,
IT IS HEREBY ORDERED that the Report and Recommendation
(docket entry 17) of Magistrate Judge Parker is adopted as the
Order of this Court;
FURTHER ORDERED that the findings of fact and conclusions of
law contained therein are adopted as the findings of fact and
conclusions of law of this Court;
FURTHER ORDERED that the Commissioner’s motion to affirm
(docket
entry
Commissioner’s
14)
is
finding
granted
that
in
the
part
(granted
plaintiff
did
as
not
to
the
meet
the
requirements of Listing 12.04);
FURTHER ORDERED that this case is remanded to the Commissioner
7
for
additional
proceedings
and
an
explanation
regarding
the
previous finding at Step Three that the plaintiff does not have an
impairment, or combination of impairments, that meets or medically
equals Listing 1.04.
SO ORDERED, this the 31st day of March, 2014.
/s/ David Bramlette
UNITED STATES DISTRICT JUDGE
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