Whittington v. Berryhill

Filing 18

MEMORANDUM: The Court concludes that the final decision of the Commissioner must be reversed and the case remanded to the Commissioner. On remand, the Commissioner must obtain a medical consultants opinion regarding whether plaintiff met the requirements of Listing 1.04 for his severe spinal impairment on or before December 31, 2008, the date plaintiff was last insured. An appropriate Judgment Order is issued herewith. Signed by Magistrate Judge David D. Noce on 7/15/19. (JAB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

BERNARD WHITTINGTON,

)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
ANDREW M. SAUL, 1
Commissioner of Social Security,
Defendant.

No. 4:18 CV 547 DDN

MEMORANDUM
This action is before the Court for judicial review of the final decision of the
defendant Commissioner of Social Security denying the application of plaintiff Bernard
Whittington for disability insurance benefits (DIB) under Title II of the Social Security
Act, 42 U.S.C. § 401, et seq. The parties have consented to the exercise of plenary
authority by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c).
For the reasons set forth below, the decision of the Commissioner is reversed and
the case remanded for further proceedings.
I. BACKGROUND
Plaintiff was born on August 20, 1971, and was 45 years old at the time of his
hearing before the Administrative Law Judge. He filed his DIB application on March 3,
2015, alleging a March 4, 2004 onset date and disability due to a back injury, severe
depression, a concussion, and impairments in both knees, his elbow, his ankles, his jaw,
1

The Court takes judicial notice that on June 4, 2019, Andrew M. Saul was confirmed by
the Senate as Commissioner of Social Security. See https://www.congress.gov/
nomination/116th-congress/94. Pursuant to Federal Rule of Civil Procedure 25(d),
Commissioner Saul is substituted for Nancy A. Berryhill as defendant in this action. No
further action needs to be taken to continue this suit by reason of 42 U.S.C. § 405(g) (last
sentence).

and his wrist, insomnia, and sleep apnea. (Tr. 180-81, 230.) Plaintiff’s application was
denied, and he requested a hearing before an Administrative Law Judge (ALJ). (Tr. 72,
79-80.)
On April 19, 2017, plaintiff and vocational expert Delores Gonzalez (VE) testified
before an ALJ. On May 22, 2017, the ALJ issued a decision that plaintiff was not
disabled under the Act, as of the date he was last insured under Title II, December 31,
2008. (Tr. 13-23.) The Appeals Council denied plaintiff’s request for review. (Tr. 14.) Thus, the decision of the ALJ stands as the final decision of the Commissioner.
II. ADMINISTRATIVE RECORD
The following is a summary of the administrative record relevant to this action.
On August 23, 2006, plaintiff saw Michael Einbund, M.D., for an examination
related to his worker’s compensation claim. (Tr. 679.) Dr. Einbund noted that plaintiff
had limited range of motion in his fingers resulting from some deformities and weakness
of the fingers. (Tr. 685.) He concluded that plaintiff had full range of motion and no
motor weakness in his right shoulder. (Tr. 684.) Dr. Einbund observed restricted range of
motion in plaintiff’s right elbow, small right finger, and left thumb. (Tr. 685.) He found
that plaintiff had normal lower extremity sensation, normal gait, and could walk on his
heels and toes; had full range of motion in the hips, knees, and ankles; and had normal
bilateral straight-leg raising at 90 degrees. (Tr. 685-86.) Dr. Einbund found that plaintiff
had normal strength in both quadriceps, hamstrings, plantar flexors/extensors, and
extensor hallucis longus muscles. (Tr. 686.) Dr. Einbund noted that plaintiff’s patellar
and Achilles reflexes were 2/4, bilaterally. (Tr. 686.)
Dr. Einbund included x-ray findings in his examination of plaintiff. (Tr. 687.) Xrays of plaintiff’s pelvis showed “both hips to be well-seated,” with no evidence of
degenerative change. The sacroiliac joints showed no evidence of sclerosis. X-rays of
plaintiff’s cervical spine showed no evidence of fracture or dislocation, but revealed
degeneration at C6-C7. Further, x-rays of the lumbosacral spine showed no evidence of
fracture or dislocation, but revealed mild anterior osteophyte formation. (Tr. 687.)

-2-

Dr. Einbund concluded plaintiff required work restrictions from repetitive work
above shoulder-level. (Tr. 698.) Regarding plaintiff’s elbows and hands, Dr. Einbund
recommended plaintiff avoid repetitive gripping and grasping. With regard to plaintiff’s
knees and ankles, Dr. Einbund recommended avoiding prolonged standing and walking,
and repetitive squatting and kneeling. (Tr. 698.)
Also on August 23, 2006, plaintiff saw Robert Rose, M.D., for a neurologic
examination. (Tr. 701.) Dr. Rose conducted an electromyogram and nerve conduction
velocity studies. (Tr. 714.) Based on these studies, Dr. Rose diagnosed “nerve root
irritation” at L4-L5 and L5-S1. (Tr. 715.) Contrary to Dr. Einbund’s finding, Dr. Rose
documented a positive straight leg test. (Tr. 711.) Further, Dr. Rose noted diffuse
weakness in the upper and lower extremities, and weakness in the back. (Tr. 712.) Dr.
Rose reported deep tendon reflexes were trace to absent throughout. (Tr. 713.) He
concluded plaintiff must avoid lifting greater than 50 pounds or carrying greater than 50
pounds due to the conditions in his back, knees, and ankles, and difficulties with both of
his arms.

(Tr. 724.) Dr. Rose further opined that plaintiff should avoid situations

requiring the operation of arm levers or leg and foot pedals, as well as situations
involving significant temperature changes. (Tr. 724.)
On April 17, 2007, plaintiff underwent MRI testing. (Tr. 737.) The MRI scans of
plaintiff’s lumbar spine revealed 2 to 3 mm. central and posterior disc protrusion. (Tr.
739.) At L5-S1, moderate hypertrophic facet changes were present. Further, the MRI
scans indicated that “the neural foramina appear patent,” throughout L2-L3, L3-L4, and
L5-S1. (Tr. 739.) The term “patent,” means “open and unobstructed,” referring to the
neural foramina being open and not encroaching on the respective nerves. 2
The Disability Determination Service conducted its review on July 15, 2015,
concluding that plaintiff was not disabled. (Tr. 68-70.)

The review included the

assessment of Psychological Consultant Linda Skolnick, Psy.D., regarding plaintiff’s
impairments. (Tr. 66-68.)
2

Medical Definition of Patent, Merriam-Webster Dictionary, https://www.merriamwebster.com/dictionary/patent#medicalDictionary.
-3-

ALJ Hearing
On April 19, 2017, plaintiff appeared with counsel and testified to the following at
a hearing before the ALJ. (Tr. 29-61.) Plaintiff is a former professional football player in
the National Football League. (Tr. 34.) Plaintiff lives alone. (Tr. 36.) His parents come to
his home during the week to help him cook, and a maid comes to his home to clean. He
sits in a hot tub approximately three times a day for twenty minute periods and, sees a
neurologist, a psychologist, and a psychiatrist. (Tr. 36.) Plaintiff completes physical
therapy twice a week, sees a chiropractor once a week, and sees a masseuse twice a
month. (Tr. 36-37.) He can drive to the pharmacy and the chiropractor, because they are
less than one mile away. For longer distances, he calls a taxi cab or his parents. (Tr. 51.)
Plaintiff testified he was self-employed as a project manager from 2004 until
2008. The work he performed included purchasing properties, hiring subcontractors to
renovate the properties, and then selling the properties. (Tr. 39.) Plaintiff testified that
during this time period, he flipped three houses in total. (Tr. 42.) In 2015, plaintiff sold
another property. (Tr. 42.)
Plaintiff is 6 feet, 6 inches tall and weighs about 265 pounds. Plaintiff has back
pain that began at the end of his playing career in the National Football League with the
Cincinnati Bengals. During his playing career, he received a shot of Toradol to relieve the
back pain. Plaintiff testified that the back pain began seriously affecting him in 2003,
which affected his ability to sit down. His back pain caused his retirement from the NFL.
(Tr. 44-45.) He was unable to lift the heavy weights he would ordinarily lift during his
NFL career, and all he could do was light jogging. (Tr. 46.) During the time period, he
experienced regular headaches. (Tr. 47.) Plaintiff walks slowly and with a limp. (Tr. 48.)
Plaintiff testified that the range of motion in his neck is very limited, that he has
limited range of motion in his right hand and right elbow due to surgeries. (Tr. 48.)
Further, the range of motion in his left shoulder is limited, as well as in both of his knees,
hands, and wrists, and all fingers and thumbs. (Tr. 49.) He testified that he has suffered
numerous concussions during his NFL career, which have affected his cognitive ability
and memory. (Tr. 50.)
-4-

Currently, he sees a pain management doctor, receives injections, and takes
morphine at least three to four times per week. He also takes antidepressants. (Tr. 51.)
Vocational Expert Delores Gonzalez testified to the following. Plaintiff has past
work as a professional football player (Specific Vocational Preparation (SVP) 6), which
she characterized as requiring heavy to very heavy exertion), and property investor (SVP
7, light, skilled). (Tr. 54.)
The ALJ posed several hypothetical questions to the VE. First, the ALJ asked the
VE to assume an individual of plaintiff’s age, education, and past relevant work. The VE
was instructed to assume the
hypothetical individual had the capacity to perform work at the light level;
lift, carry, push, pull, 20 pounds occasionally, 10 pounds frequently; sit,
stand, walk for six hours in an eight-hour workday; further limited to only
frequent overhead reaching, frequent handling and frequent stooping;
would that hypothetical individual be able to perform any of the past work
you just described?
(Tr. 56.) The VE answered that this hypothetical person could not perform as a football
player, but could do plaintiff’s prior work as a property investor. (Id.).
In the second hypothetical question, the ALJ had the VE assume that the subject
was limited to sedentary exertion. In response, the VE testified that the subject could not
perform any of plaintiff’s prior work. (Tr. 57.)
In her third hypothetical question, the ALJ had the VE assume the same subject
with the sedentary exertional limitation and asked whether the subject could perform
other work in the national economy. The VE said this subject could do the work of a
document preparer and a tube operator. (Id.)
In her fourth hypothetical question, the ALJ had the VE assume the same
individual had to be off-task for thirty percent of the day “due to physical injuries.” In
response, the VE testified that such a person would not be able to work competitively at
all. (Id.)
In a fifth hypothetical question to the VE, the ALJ assumed the same subject,
except that the subject could work at the light exertional level, but with “the additional
-5-

limitation of handling reduced to frequent and reaching at frequent; would those same
jobs be available; the addresser, [document preparer] and tube operator?” In response,
the VE testified:
The addresser would require frequent reaching, handling, fingering, no
stooping. The document preparer would require frequent reaching,
handling, fingering; stooping is not present; and the tube operator is
frequent reaching, handling, occasional fingering, no stooping.
(Tr. 59-60.)
III. DECISION OF THE ALJ
On May 22, 2017, the ALJ issued a decision that plaintiff was not disabled under
Title II of the Social Security Act through December 31, 2008, the last date insured. (Tr.
13-23.) At Step One of the required five-step sequential evaluation, the ALJ found that
plaintiff had not engaged in substantial gainful activity between the March 4, 2004 onset
date and the date last insured. (Tr. 15-16.) The ALJ considered the issue of significant
business activities due to plaintiff’s work as President and CEO of a company called X3
during the years 2003 through 2006. However, the ALJ concluded that she would give
plaintiff the benefit of the doubt, i.e. by assuming plaintiff did no substantial gainful
employment during 2003 through 2006, and to perform a full analysis of plaintiff’s
application for disability benefits. (Tr. 16.)
At Step Two, the ALJ found that plaintiff suffers from the following severe
impairments: temporomandibular joint dysfunction, degenerative joint disease, and
degenerative disc disease. (Tr. 16.) The ALJ noted that additional diagnoses of other
impairments only appeared in the record after plaintiff’s date last insured. She concurred
with the opinion of psychologist Linda Skolnick and concluded that plaintiff did not
suffer from any severe mental impairment. (Id.)
At Step Three, the ALJ found that plaintiff had not accomplished his burden of
establishing that he suffered an impairment or combination of impairments that met or
medically equaled the severity of one of the listed presumptively disabling impairments
in 20 CFR Part 404, Subpart P, Appendix 1, on or before December 31, 2008. (Id.)
-6-

The ALJ found that plaintiff retained the residual functional capacity (RFC),
through the date last insured, to perform light work as defined in 20 CFR 404.1567(b),
except that he could lift, carry, push, and pull 20 pounds only occasionally and only 10
pounds frequently, and “sit, stand, and walk six hours in an eight-hour workday, and was
limited to frequent overhead reaching, frequent handling, and frequent stooping.” (Tr.
17.) At Step Four, the ALJ found that plaintiff was unable to perform any of his past
relevant work through the date last insured. (Tr. 21.)
At Step Five, the ALJ found that, considering plaintiff’s age, education, work
experience, and RFC, that plaintiff could perform sedentary work as an addresser,
document preparer, and tube operator. Accordingly, the ALJ found that plaintiff was not
disabled under the Social Security Act, at any time from the alleged onset date through
the date last insured. (Tr. 23.)

IV. GENERAL LEGAL PRINCIPLES
The Court’s role on judicial review of the Commissioner’s decision is to determine
whether the Commissioner’s findings comply with the relevant legal requirements and
are supported by substantial evidence in the record as a whole. Pate-Fires v. Astrue, 564
F.3d 935, 942 (8th Cir. 2009). “Substantial evidence is less than a preponderance, but is
enough that a reasonable mind would find it adequate to support the Commissioner’s
conclusion.” Id. In determining whether the evidence is substantial, the Court considers
evidence that both supports and detracts from the Commissioner's decision. Id. As long
as substantial evidence supports the decision, the Court may not reverse it merely because
substantial evidence exists in the record that would support a contrary outcome or
because the court would have decided the case differently. See Krogmeier v. Barnhart,
294 F.3d 1019, 1022 (8th Cir. 2002).
To be entitled to disability benefits, a claimant must prove he is unable to perform
any substantial gainful activity due to a medically determinable physical or mental
impairment or combination of impairments that can be expected to result in death or that
has lasted or could be expected to last for at least 12 continuous months. 42 U.S.C. §
-7-

1382c(a)(3)(A); Pate-Fires, 564 F.3d at 942. A five-step regulatory framework is used to
determine whether an individual is disabled. 20 C.F.R. § 404.1520(a)(4); see also PateFires, 564 F.3d at 942 (describing the five-step process).
V. DISCUSSION
Plaintiff’s sole argument on judicial review is that the ALJ at Step 3 of her
analysis erred by not obtaining a consultative medical expert opinion regarding medical
equivalence of plaintiff's back impairment with the requirements of the presumptively
disabling condition described by Listing 1.04.

He argues the administrative record

supports his medical equivalence to Listing 1.04. Listing 1.04 provides:
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 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);
or
B. Spinal arachnoiditis, confirmed by an operative note or pathology report
of tissue biopsy, or by appropriate medically acceptable imaging,
manifested by severe burning or painful dysesthesia, resulting in the need
for changes in position or posture more than once every 2 hours;
or
C. Lumbar spinal stenosis resulting in pseudoclaudication, established by
findings on appropriate medically acceptable imaging, manifested by
chronic nonradicular pain and weakness, and resulting in inability to
ambulate effectively, as defined by 1.00B2b.
Plaintiff argues that he demonstrated all the requirements for medical equivalence with
Listing 1.04 for a presumptively disabling spinal disorder. If a claimant has an
-8-

impairment or combination of impairments that matches or is substantially equivalent to
an impairment in the Listing of Impairments, the applicant is per se disabled. 20 C.F.R. §
404.1520(d); Bowen v. City of New York, 476 U.S. 467, 471 (1986); Carlson v. Astrue,
604 F.3d 589, 592 (8th Cir. 2010).
A claimant’s impairment(s) meets a listing only if all of the specified medical
criteria for that listing are satisfied. KKC ex rel. Stoner v. Colvin, 818 F.3d 364, 370 (8th
Cir. 2016). “An impairment that manifests only some of those criteria, no matter how
severely, does not qualify.” Id. (citations omitted). The burden is on the plaintiff to
present medical findings “equal in severity to all the criteria for the one most similar
listed impairment.” Sullivan v. Zebley, 493 U.S. 521, 531 (1990).
In her opinion the ALJ considered certain Listings. First, she described Listing
1.02 (major joint dysfunction), stating only that plaintiff failed to establish either of the
two major components of the listing and that, “[a]lthough the claimant has records
supporting impairments, they are not of the severity required by either part of the
listings.” (Tr 16.) She considered also Listings 1.04 (spinal disorder), 2.07 (disturbance
of the labyrinthine-vestibular function of the ear), 2.08 (speech loss), 2.09 (hearing loss),
and 5.08 (weight loss). Regarding the listings, the ALJ stated, “the claimant did not
demonstrate any of these impairments at the symptom severity level required by the
listings for these impairments.” (Tr. 17.)
Plaintiff argues that the ALJ erred in finding the factors of Listing 1.04 unmet.
The Court agrees with plaintiff that the ALJ erred in not further developing the record
regarding this listing. Regarding Listing 1.04, the ALJ stated only:
The claimant does not meet Listing 1.04 for a spinal disorder because he
lacks evidence of nerve root compression, spinal arachnoiditis, or pseudoclaudication of his lumbar spine that results in an inability to ambulate
effectively as of the date last insured.
(Tr. 16.) This finding that no administrative record evidence supported Listing 1.04 is
not supported by substantial evidence in the record. Well before his date last insured, on
August 23, 2006, plaintiff was examined by neurologist Dr. Robert Rose. Dr. Rose
-9-

reported on October 2, 2006, that the exam demonstrated a positive straight leg raising
test (Tr. 711), back weakness (Tr. 712), a loss of sensation at L5 and S1 (Tr. 713), and
spinal nerve irritation at several levels, with a question of disk disease. (Tr. 715.) The
record of plaintiff’s April 17, 2007 spinal MRI indicated disks protruding at L2-L3, L3L4, and L5-S1. (Tr. 739.) These findings are corroborated by the December 6, 2013 3
MRI examination results that the ALJ referenced in her opinion. (Tr. 20.)
The parties dispute whether SSR 17-2p requires the ALJ to obtain an updated
consultative opinion from a medical expert when additional medical evidence is received.
The new evidence, he argues, could modify the State agency medical consultant’s finding
that the impairment was not equivalent in severity to any impairment in the Listing of
Impairments.
The applicability of SSR 17-2p need not be decided, because “the ALJ bears a
responsibility to develop the record fairly and fully, independent of the claimant’s burden
to press his case.” Snead v. Barnhart, 360 F.3d 834, 838 (8th Cir. 2004) (case remanded
for further development of record to determine whether treating physician's evidence
deserved controlling weight); Hesseltine v. Colvin, 800 F.3d 461, 466 (8th Cir. 2015)
(reversed and remanded for further proceedings when an ALJ failed to fully consider a
particular listing).
The Court concludes that the final decision of the Commissioner must be reversed
and the case remanded to the Commissioner. On remand, the Commissioner must obtain
a medical consultant’s opinion regarding whether plaintiff met the requirements of

3

While December 6, 2013, is well past the date plaintiff was last insured under Title II,
December 31, 2008, the evidence generated on this date may well prove or corroborate
the severity of his back impairment before December 31, 2008. See Parsons v. Heckler,
739 F.2d 1334, 1340 (8th Cir. 1984) (ruling mental evaluations occurring after expiration
of insured status "must be considered in order to get a clear understanding of Parsons'
mental condition as of June 30, 1981."); DeNafo v. Gardner, 272 F. Supp. 44, 46 (D. N.
J. 1967) (ruling evidence of a heart condition in May 1964 must be considered as
regarding the condition of claimant as of March 31, 1959, the date he last met the
earnings requirement of Title II).
- 10 -

Listing 1.04 for his severe spinal impairment on or before December 31, 2008, the date
plaintiff was last insured.
An appropriate Judgment Order is issued herewith.

/S/ David D. Noce
k
UNITED STATES MAGISTRATE JUDGE

Signed on July 15, 2019.

- 11 -