Barber v. Colvin
Filing
23
ORDER granting 19 Motion to Remand to Commissioner, Social Security Administration. Signed by Chief Judge Jeffrey L. Viken on 3/24/16. (SB)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
CIV. 14-5086-JLV
TODD A. BARBER,
Plaintiff,
ORDER
vs.
CAROLYN W. COLVIN, Acting
Commissioner, Social Security
Administration,
Defendant.
INTRODUCTION
Plaintiff Todd Barber filed a complaint appealing from an administrative
law judge’s (“ALJ”) decision denying disability insurance benefits. (Docket 1).
Defendant denies plaintiff is entitled to benefits. (Docket 10). The court issued
a briefing schedule requiring the parties to file a joint statement of material facts
(“JSMF”). (Docket 12). The parties filed their JSMF. (Docket 13). The
parties also filed a joint statement of disputed material facts (“JSDMF”).
(Docket 14). Following the completion of court ordered briefing, the plaintiff
filed a motion for remand pursuant to 42 U.S.C. § 405(g) based on new and
material evidence. (Docket 19). Defendant resists plaintiff’s remand motion.
(Docket 22).
For the reasons stated below, plaintiff’s motion to remand (Docket 19) is
granted.
FACTUAL AND PROCEDURAL HISTORY
The parties’ JSMF (Docket 13) and JSDMF (Docket 14) are incorporated by
reference. Further recitation of salient facts is incorporated in the discussion
section of this order.
On January 19, 2012, Mr. Barber filed an application for disability
insurance (“DI”) benefits alleging an onset of disability date of July 6, 2009.
(Docket 13 ¶ 1). On July 31, 2013, the ALJ issued a decision finding Mr. Barber
was not disabled. Id. ¶ 10; see also Administrative Record at pp. 11-24
(hereinafter “AR at p. ____”). On September 22, 2014, the Appeals Council
denied Mr. Barber’s request for review and affirmed the ALJ’s decision. (Docket
13 ¶ 12). The ALJ’s decision constitutes the final decision of the Commissioner
of the Social Security Administration. It is from this decision which Mr. Barber
timely appeals.
The issue before the court is whether the ALJ’s decision of July 31, 2013,
that Mr. Barber was not “under a disability, as defined by the Social Security Act,
from July 6, 2009, through [July 31, 2013]” is supported by substantial evidence
in the record as a whole. (AR at p. 24) (bold omitted); see also Howard v.
Massanari, 255 F.3d 577, 580 (8th Cir. 2001) (“By statute, the findings of the
Commissioner of Social Security as to any fact, if supported by substantial
evidence, shall be conclusive.”) (internal quotation marks and brackets omitted)
(citing 42 U.S.C. § 405(g)).
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STANDARD OF REVIEW
The Commissioner’s findings must be upheld if they are supported by
substantial evidence in the record as a whole. 42 U.S.C. § 405(g); Choate v.
Barnhart, 457 F.3d 865, 869 (8th Cir. 2006); Howard, 255 F.3d at 580. The
court reviews the Commissioner’s decision to determine if an error of law was
committed. Smith v. Sullivan, 982 F.2d 308, 311 (8th Cir. 1992). “Substantial
evidence is less than a preponderance, but is enough that a reasonable mind
would find it adequate to support the Commissioner’s conclusion.” Cox v.
Barnhart, 471 F.3d 902, 906 (8th Cir. 2006) (internal citation and quotation
marks omitted).
The review of a decision to deny benefits is “more than an examination of
the record for the existence of substantial evidence in support of the
Commissioner’s decision . . . [the court must also] take into account whatever in
the record fairly detracts from that decision.” Reed v. Barnhart, 399 F.3d 917,
920 (8th Cir. 2005) (quoting Haley v. Massanari, 258 F.3d 742, 747 (8th Cir.
2001)).
It is not the role of the court to re-weigh the evidence and, even if this court
would decide the case differently, it cannot reverse the Commissioner’s decision
if that decision is supported by good reason and is based on substantial
evidence. Guilliams v. Barnhart, 393 F.3d 798, 801 (8th Cir. 2005). A
reviewing court may not reverse the Commissioner’s decision “ ‘merely because
substantial evidence would have supported an opposite decision.’ ” Reed, 399
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F.3d at 920 (quoting Shannon v. Chater, 54 F.3d 484, 486 (8th Cir. 1995)).
Issues of law are reviewed de novo with deference given to the Commissioner’s
construction of the Social Security Act. See Smith, 982 F.2d at 311.
The Social Security Administration established a five-step sequential
evaluation process for determining whether an individual is disabled and entitled
to disability benefits under Title II. 20 CFR § 404.1520(a). If the ALJ
determines a claimant is not disabled at any step of the process, the evaluation
does not proceed to the next step as the claimant is not disabled. Id. The
five-step sequential evaluation process is:
(1) whether the claimant is presently engaged in a “substantial
gainful activity”; (2) whether the claimant has a severe
impairment—one that significantly limits the claimant’s physical or
mental ability to perform basic work activities; (3) whether the
claimant has an impairment that meets or equals a presumptively
disabling impairment listed in the regulations (if so, the claimant is
disabled without regard to age, education, and work experience); (4)
whether the claimant has the residual functional capacity to
perform . . . past relevant work; and (5) if the claimant cannot
perform the past work, the burden shifts to the Commissioner to
prove there are other jobs in the national economy the claimant can
perform.
Baker v. Apfel, 159 F.3d 1140, 1143-44 (8th Cir. 1998). The ALJ applied the
five-step sequential evaluation required by the Social Security Administration
regulations. (AR at pp. 20-21).
STEP ONE
At step one, the ALJ determined Mr. Barber had not been engaged in
substantial gainful activity since July 6, 2009, the alleged onset date. Id. at
p. 13; see also Docket 13 ¶ 275.
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STEP TWO
At step two, the AlJ determined Mr. Barber had the following severe
impairment: “degenerative disc disease in his lumbar spine with right lower
extremity radiculitis . . . .” (AR at p. 13; see also Docket 13 ¶ 276). Mr. Barber
does not challenge this finding. (Docket 16).
STEP THREE
At step three, the ALJ determines whether claimant’s impairment or
combination of impairments meets or medically equals the criteria of an
impairment listed in 20 CFR Part 404, Subpart P, Appendix 1 (“Appendix 1”).
20 CFR §§ 404.1520(d), 404.1525, and 404.1526. If a claimant’s impairment or
combination of impairments meets or medically equals the criteria for one of the
impairments listed and meets the duration requirement of 20 CFR § 404.1509,
the claimant is considered disabled. A claimant has the burden of proving an
impairment or combination of impairments meets or equals a listing within
Appendix 1. Johnson v. Barnhart, 390 F.3d 1067, 1070 (8th Cir. 2004).
The ALJ found Mr. Barber’s “degenerative disc disease in [his] lumbar
spine and his right lower extremity radiculitis does not meet or medically equal
the requirements of section 1.04.” (AR at p. 14). The ALJ concluded “[t]he
medical evidence does not establish that he exhibits evidence of having nerve
root compression in his lumbar spine with motor loss accompanied by reflex or
sensory loss. He does not have positive straight leg raising tests. The medical
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evidence does not establish that he has spinal arachnoiditis1 in his lumbar spine
or lumbar spinal stenosis resulting in pseudoclaudication.”2 Id.
Mr. Barber argues the ALJ erred by “fail[ing] to consider the specific
criteria of Listing 1.04A . . . .” (Docket 16 at p. 22). He asserts the ALJ should
have considered the following:
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). . . .
Id. at pp. 22-23 (citing Appendix 1, Listing 1.04(A)) (emphasis and italics added
by Mr. Barber). In the alternative, Mr. Barber claims the ALJ should have
applied Listing 1.00(H)(4). Id. at p. 24. That Listing provides:
Evaluation when the criteria of a musculoskeletal listing are not
met. These listings are only examples of common musculoskeletal
disorders that are severe enough to prevent a person from engaging
in gainful activity. Therefore, in any case in which an individual
has a medically determinable impairment that is not listed, an
impairment that does not meet the requirements of a listing, or a
“Spinal arachnoiditis is a condition characterized by adhesive thickening
of the arachnoid which may cause intermittent ill-defined burning pain and
sensory dysesthesia, and may cause neurogenic bladder or bowel incontinence
when the cauda equina [the collection of spinal roots that descend from the lower
part of the spinal cord] is involved.” Appendix 1, Listing 1.00(K)(2)(a).
1
“Pseudoclaudication, which may result from lumbar spinal stenosis [a
condition that may occur in association with degenerative processes, or as a
result of a congenital anomaly or trauma . . .], is manifested as pain and
weakness, and may impair ambulation.” Appendix 1, Listing 1.00(K)(3) (italics
omitted).
2
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combination of impairments no one of which meets the
requirements of a listing, we will consider medical equivalence.
Appendix 1, Listing 1.00(H)(4).
Mr. Barber argues imaging of his spine “showed facet disease and
capsulosynovitis, desiccated discs and annular tear, spondylolisthesis and
retrolisthesis, Modic changes, and multiple Schmorl’s nodes.” (Docket 16 at pp.
24-25) (referencing Docket 13 ¶ 201). Because of these “multiple symptomatic
spine abnormalities[,]” Mr. Barber claims the ALJ should have assessed medical
equivalency at step three and found he is disabled at this step. Id. at p. 25.
One of the important questions in this case is whether Mr. Barber was a
viable candidate for spinal surgery. On July 18, 2011, neurosurgeon Dr.
Ingraham charted that Mr. Barber suffered “discogenic and facetogenic back
pain with abnormal motion at L4-5 and some foraminal stenosis.” (Docket 13
¶ 213). Dr. Ingraham recommended “a lumbar fusion and decompression at
L4-5 with instrumentation and transforaminal lumbar interbody fusion.” Id.
On September 29, 2011, orthopedic surgeon Dr. Schleusener concluded Mr.
Barber was not a good candidate for lumbar fusion surgery. Id. ¶ 215. Dr.
Schleusener opined that even “a multilevel fusion . . . is not going to make [Mr.
Barber] that much more functional.” Id.
As of July 9, 2013, the date of the administrative hearing, Mr. Barber had
not had spinal surgery. It was on this status of the record that the ALJ issued
an adverse decision to Mr. Barber on July 31, 2013.
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On December 12, 2014, orthopedic surgeon Dr. Jensen conducted an
independent medical examination of Mr. Barber for the attorney representing
Mr. Barber’s worker’s compensation carrier. (Docket 14 ¶ 1). Dr. Jensen
concluded “[t]he surgery offered by Dr. Ingraham would be only part of the
surgery necessary. He would benefit more [from a] L4-5, L5-S1 decompression
and fusion. If the L5-S1 level is left untreated with the isthmic
spondylolisthesis, I think this could potentially lead to further degenerative
changes and compressive neurological problems. . . . I think he needs a 2-level
fusion not a 1-level fusion.” Id. ¶ 6.
While the case was on appeal to this court Mr. Barber had spinal surgery.
(Docket 20-1). On July 16, 2015, Dr. Ingraham performed a two-level fusion at
L4-L5 and L5-S1 and a laminectomy3 with medial facetectomy4 and
foraminotomy5 at L4-L5. Id. at p. 1.
A laminectomy “creates space by removing the lamina—the back part of
the vertebra that covers your spinal canal. Also known as decompression
surgery, laminectomy enlarges your spinal canal to relieve pressure on the spinal
cord or nerves.” http://www.mayoclinic.org/tests-procedures/laminectomy/
basics/definition/prc-20009521.
3
“Medial facetectomy is a spinal procedure that partially removes one or
both of the facet joints on a set of vertebrae. The procedure intends to
decompress the spinal nerves being pinched by degenerated facet joints.”
www.spines.com/procedures/medial-facetectomy.
4
“A foraminotomy is a decompression surgery that is performed to enlarge
the passageway where a spinal nerve root exits the spinal canal.” http://www
.spineuniverse.com/treatments/surgery/foraminotomy-taking-pressure-spinalnerves.
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After this surgery Mr. Barber filed a motion to remand his case to the
Commissioner pursuant to sentence six of 42 U.S.C. § 405(g). (Docket 19). He
argues the evidence concerning the surgery was “not available during the
administrative proceedings” and there exists “good cause” for remand under
§ 405(g). Id. Mr. Barber claims this surgery “is probative of a disabling
musculoskeletal condition” and “would more than likely change the
Commissioner’s determination . . . .” (Docket 21 at pp. 2-3).
The Commissioner opposes plaintiff’s motion. (Docket 22). Defendant
argues “[n]ot only was the evidence not generated during the relevant period, the
evidence was not even created in close proximity to the relevant time period.”
Id. at p. 2. Citing Whitman v. Colvin, 762 F.3d 701, 709 (8th Cir. 2014), as
authority for her position, the Commissioner contends that “[i]f medical evidence
that postdates the relevant period by only five months does not shed light upon a
claimant’s condition during the relevant period, then it follows a fortiori the
instant surgical report is likewise irrelevant.” Id. (italics in original).
Sentence six of § 405(g) provides: “The court may . . . at any time order
additional evidence to be taken before the Commissioner . . . but only upon a
showing that there is new evidence which is material and that there is good
cause for the failure to incorporate such evidence into the record in a prior
proceeding.” 42 U.S.C. § 405(g). In a sentence six remand, “[t]he district court
does not affirm, modify, or reverse the [Commissioner’s] decision; it does not rule
in any way as to the correctness of the administrative determination.”
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Melkonyan v. Sullivan, 501 U.S. 89, 98 (1991). “Rather, the court remands
because new evidence has come to light that was not available to the claimant at
the time of the administrative proceeding and that evidence might have changed
the outcome of the prior proceeding.” Id.
In Whitman, the court addressed whether a number of medical records
were new evidence under § 405(g). The first item, a physician’s note which
existed before the administrative hearing, was cumulative to “other evidence
already in the record” and “describing symptoms five months after the date last
insured.” Whitman, 762 F.3d at 709. The second item was “partially
cumulative” and was similarly related to a lumbar condition which “post-date[d]
Whitman’s last date insured and thus do[es] not relate to the denial period at
issue.” Id. The final three medical records were not cumulative, but related to
examinations “almost a year after the ALJ hearing and sixteen months after the
date last insured.” Id. Without deciding whether these final three medical
records were new evidence which was “material, non-cumulative, and related to
the denial period at issue,” the court concluded the claimant “failed to show ‘good
cause for the failure to incorporate such evidence into the record in a prior
hearing.’ ” Id. at 710 (citing 42 U.S.C. § 405(g)).
The Commissioner’s reliance on Whitman is misplaced. In the present
case, the ALJ concluded Mr. Barber’s “earnings record shows that the claimant
has acquired sufficient quarters of coverage to remain insured through
December 31, 2013. Thus, the claimant must establish disability on or before
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that date in order to be entitled to a period of disability and disability insurance
benefits.” (AR at p. 11). The court finds the July 16, 2015, report of surgery
relates back to Mr. Barber’s condition during a period of insurability and most
accurately describes the nature and extent of his spinal condition. Without the
vantage point of surgery, no physician was truly able to determine the nature
and full extent of Mr. Barber’s condition. It was only after surgery that Dr.
Ingraham could conclusively determine the physiological condition of Mr.
Barber’s spine and the extent of the surgical intervention necessary. The court
finds the medical records are “[m]aterial . . . noncumulative . . . and probative of
[Mr. Barber’s] condition for the time period for which benefits were denied . . . .”
Krogmeier v. Barnhart, 294 F.3d 1019, 1025 (8th Cir. 2002). It would be unfair
to both Mr. Barber and the Commissioner for the court to engage in speculation
or conjecture as to how the ALJ would evaluate the new evidence, but there
is a “reasonable likelihood” that these records would have an impact upon and
change the Commissioner’s decision. Id. See also Woolf v. Shalala, 3 F.3d
1210, 1215 (8th Cir. 1993) (“To be material, new evidence must be noncumulative, relevant, and probative of the claimant’s condition for the time
period for which benefits were denied, and there must be a reasonable likelihood
that it would have changed the Secretary’s determination.”).
The court finds good cause exists under § 405(g) as this new evidence
could not be presented during the hearing before the ALJ. Krogmeier, 294 F.3d
at 1025 (referencing Buckner v. Apfel, 213 F.3d 1006, 1010 (8th Cir. 2000). The
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court finds this new evidence is relevant to step three as to whether Mr. Barber
satisfies the medical equivalency provision of Listing 1.00; step four as to Mr.
Barber’s credibility and the resulting RFC; and step five as to whether Mr. Barber
is disabled. It would be unfair and prejudicial to both parties to not require the
Social Security Administration to properly develop the full record in the
particular factual circumstances of this case. Haley, 258 F.3d at 750 (“reversal
due to failure to develop the record is only warranted where such failure is unfair
or prejudicial.”) (internal quotation marks and citation omitted).
ORDER
Based on the above analysis, it is
ORDERED that plaintiff’s motion (Docket 19) is granted. Pursuant to
sentence six of 42 U.S.C. § 405(g), the court remands this action to the
Commissioner for further administrative proceedings.
IT IS FURTHER ORDERED that the Commissioner shall provide Mr.
Barber with a de novo hearing before an administrative law judge. The ALJ
shall obtain and admit evidence of Mr. Barber’s July 16, 2015, hospitalization
and surgery at the Black Hills Surgical Hospital (Docket 20-1) and any additional
evidence which relates to the physiological consequences of that surgery.
IT IS FURTHER ORDERED that the ALJ shall evaluate the newly admitted
evidence and reevaluate Mr. Barber’s claim at steps three through five of the
sequential evaluation process for determining whether an individual is disabled
and entitled to disability benefits under Title II. 20 CFR § 404.1520(a).
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IT IS FURTHER ORDERED that, following the completion of further
administrative proceedings, the ALJ shall modify or affirm the Commissioner’s
findings of fact or the Commissioner’s decision, or both, and shall file with the
court any such additional and modified findings of fact and decision, and, in any
case in which the Commissioner has not made a decision fully favorable to the
individual, a transcript of the additional record and testimony upon which the
Commissioner’s action in modifying or affirming was based. See 42 U.S.C.
§ 405(g).
IT IS FURTHER ORDERED that the United States Attorney’s Office
shall file a status report every ninety (90) days as to the progression of the
case on remand, beginning on June 22, 2016.
Dated March 24, 2016.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
CHIEF JUDGE
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