Tulowiecki v. Astrue

Filing 17

MEMORANDUM OPINION OF THE UNITED STATES DISTRICT COURT. Signed by Judge Rodney Gilstrap on 9/30/2014. (ch, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION
MARK TULOWIECKI

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v.

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COMMISSIONER, SOCIAL SECURITY
ADMINISTRATION

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CIVIL ACTION NO. 2:12CV731

MEMORANDUM OPINION OF THE
UNITED STATES DISTRICT COURT
On November 21, 2012, Plaintiff initiated this civil action pursuant to the Social Security Act
(The Act), Section 205(g) for judicial review of the Commissioner’s denial of Plaintiff’s application
for Social Security benefits.
I.

HISTORY
On October 15, 2010, Plaintiff filed a Title II application, alleging a disability with an onset

date of October 20, 2009. See Transcript (“Tr.”) at 10 (Administrative Law Judge (ALJ) decision).
The claim was denied initially and denied again on reconsideration. Id. The Plaintiff sought review of
the denial. An administrative hearing was conducted before the ALJ on August 31, 2011. See Tr. at
33 (hearing transcript). Plaintiff appeared and testified, represented by counsel. In addition, a
vocational expert (“VE”), Charles Smith, also testified. No medical expert was called to testify.
The ALJ issued an unfavorable decision on September 21, 2011. Plaintiff sought review. On
September 24, 2012, the Appeals Council denied review. See Tr. at 1. Therefore, the ALJ’s decision
became the Commissioner’s final decision. See Sims v. Apfel, 530 U.S. 103, 106-07 (2000). Plaintiff
then filed the instant action for review by this Court.

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II.

STANDARD
Title II of the Act provides for federal disability insurance benefits. Judicial review of the denial

of disability benefits under section 205(g) of the Act, 42 U.S.C. § 405(g), is limited to “determining
whether the decision is supported by substantial evidence in the record and whether the proper legal
standards were used in evaluating the evidence.” Bowling v. Shalala, 36 F.3d 431, 434 (5th Cir. 1994)
(per curiam); Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990); Muse v. Sullivan, 925 F.2d 785,
789 (5th Cir. 1991) (per curiam).
A finding of no substantial evidence is appropriate only where 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) (per curiam); Hames v. Heckler, 707 F.2d 162, 164 (5th Cir. 1983) (per curiam). Accordingly,
the Court “may not reweigh the evidence in the record, nor try the issues de novo, nor substitute [the
Court’s] judgment for the [Commissioner]’s, even if the evidence preponderates against the
[Commissioner]’s decision.” Bowling, 36 F.3d at 434; Harrell v. Bowen, 862 F.2d 471, 475 (5th Cir.
1988) (per curiam); see Spellman v. Shalala, 1 F.3d 357, 360 (5th Cir. 1993); Anthony v. Sullivan, 954
F.2d 289, 295 (5th Cir. 1992); Cook v. Heckler, 750 F.2d 391, 392 (5th Cir. 1985). Rather, conflicts
in the evidence are for the Commissioner to decide. Spellman, 1 F.3d at 360; Selders v. Sullivan, 914
F.2d 614, 617 (5th Cir. 1990); Anthony, 954 F.2d 289, 295 (5th Cir. 1992); Patton v. Schweiker, 697
F.2d 590, 592 (5th Cir. 1983). A decision on the ultimate issue of whether a claimant is disabled, as
defined in the Act, rests with the Commissioner. Newton v. Apfel, 209 F.3d 448, 455-56 (5th Cir.
2000); SSR 96-5p.
“Substantial evidence is more than a scintilla but less than a preponderance – that is, enough
that a reasonable mind would judge it sufficient to support the decision.” Pena v. Astrue, 271 Fed.
Appx. 382, 383 (5th Cir.2003); Falco v. Shalala, 27 F.3d 160, 162 (5th Cir.1994). Substantial
evidence includes four factors: (1) objective medical facts or clinical findings; (2) diagnoses of
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examining physicians; (3) subjective evidence of pain and disability; and (4) the plaintiff’s age,
education, and work history. Fraga v. Bowen, 810 F.2d at 1302, n.4 (5th Cir. 1987). If supported by
substantial evidence, the decision of the Commissioner is conclusive and must be affirmed. Richardson,
402 U.S. at 390, 91 S.Ct. at 1422. The Court, however, must do more than “rubber stamp” the ALJ’s
decision; the Court must “scrutinize the record and take into account whatever fairly detracts from the
substantiality of evidence supporting the [Commissioner]’s findings.” Cook, 750 F.2d 391, 393 (5th
Cir. 1985).
A claimant for disability has the burden of proving a disability. Wren v. Sullivan, 925 F.2d 123,
125 (5th Cir. 1991). The Act defines “disability” as an “inability to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment which can be expected
to result in death or which can be expected to last for a continuous period of not less than 12 months.”
42 U.S.C. § 416(I)(1)(A); 42 U.S.C. § 423(d)(1)(A). A “physical or mental impairment” is an
anatomical, physiological, or psychological abnormality which is demonstrable by acceptable clinical
and laboratory diagnostic techniques. 42 U.S.C. § 423(d)(2)(A); 42 U.S.C. § 1382c(a)(3)(B).
In order to determine whether a claimant is disabled, the Commissioner must utilize a five-step,
sequential process. Villa, 895 F.2d at 1022. A finding of “disabled” or “not disabled” at any step of the
sequential process ends the inquiry. Id.; see Bowling, 36 F.3d at 435; Harrel, 862 F.2d at 475. Under
the five-step sequential analysis, the Commissioner must determine at Step One whether the claimant
is currently engaged in substantial gainful activity. At Step Two, the Commissioner must determine
whether one or more of the claimant’s impairments are severe. At Step Three, the Commissioner must
determine whether the claimant has an impairment or combination of impairments that meet or equal
one of the listings in Appendix I. Prior to moving to Step Four, the Commissioner must determine the
claimant’s Residual Functional Capacity (“RFC”), or the most that the claimant can do given his

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impairments, both severe and non-severe. Then, at Step Four, the Commissioner must determine
whether the claimant is capable of performing his past relevant work.
Finally, at Step Five, the Commissioner must determine whether the claimant can perform other
work available in the local or national economy. 20 C.F.R. § 416.920(a). An affirmative answer at
Step One or a negative answer at Steps Two, Four, or Five results in a finding of “not disabled.” See
Villa, 895 F.2d at 1022. An affirmative answer at Step Three, or an affirmative answer at Steps Four
and Five, creates a presumption of disability. Id. The burden of proof is on the claimant for the first
four steps, but shifts to the Commissioner at Step Five if the claimant shows that he cannot perform his
past relevant work. Anderson v. Sullivan, 887 F.2d 630, 632-33 (5th Cir. 1989) (per curiam).
To obtain Title II disability benefits, Plaintiff must show that he was disabled on or before the
last day of his insured status. Ware v. Schweiker, 651 F.2d 408, 411 (5th Cir.1981), cert. denied, 455
U.S. 912 (1982).
III.

ADMINISTRATIVE LAW JUDGE’S FINDINGS
The ALJ made the following findings in the September 21, 2011 decision:
The claimant meets the insured status requirement of the Social Security Act through December
31, 2013.
The claimant has not engaged in substantial gainful activity since October 20, 2009, the alleged
onset date (20 C.F.R. § 404.1571 et seq.).
The claimant has the following severe impairments: Spondylosis, Myalgia, and Myositis (20
C.F.R. § 404.1520[c]).
The claimant does not have an impairment or combination of impairments that meets or
medically equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1
(20 C.F.R. §§ 404.15209d), 404.1525, 404.1526).
The claimant has the residual functional capacity to perform light work as defined in 20 C.F.R.
§ 404.1567(b) except he is limited to occasional bending, stooping or crouching and no
squatting, crawling, kneeling, or climbing.
The claimant is unable to perform any past relevant work (20 CFR § 404.1565).
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Considering the claimant’s age, education, work experience, and residual functional capacity,
there are jobs that exist in significant numbers in the national economy that the claimant can
perform. (20 C.F.R. part 404, Subpart P, Appendix 2).
The claimant has not been under a disability, as defined in the Social Security Act, from
October 20, 2009, through the date of this decision (20 C.F.R. § 404.1520(g)). See Tr. at 17.
The ALJ determined that Plaintiff was not disabled under §1614 (a)(3)A) of the Social Security
Act. See Tr. at 17.
IV.

DISCUSSION AND ANALYSIS
Plaintiff was born on March 29, 1960. See Tr. at 15. He was forty-nine years old on his alleged

onset date. See Id. He attended high school through the 11th grade and obtained a GED later in life. See
Tr. at 39. He also obtained vocational training in air conditioning systems. See Tr. at 39. His past
relevant work experience was as a maintenance man, clerk and salesman. See Tr. at 15.
Plaintiff asserts that he cannot work because he suffers from lumbosacral spondylosis, cervical
disc degeneration, joint pain, lumbago, myalgia, myositis, hypertension, hyperlipidemia,
gastroesophageal reflux disease (“GERD”), and depression. The ALJ found that Plaintiff’s severe
impairments are Spondylosis, Myalgia, and Myositis. See Tr. at 12.
Plaintiff presents the following issue for review:
Whether substantial evidence and relevant legal standards support the Administrative
Law Judge’s (ALJ’s) residual functional capacity assessment.
See Plaintiff’s Brief (Pl.’s Br.) at 1.
A.

The Medical Evidence

Plaintiff has a longstanding history of injury to his lumbar spine with associated chronic pain;
exacerbated by motor vehicle accidents in 2001 and 2010. See Tr. at 233, 362-366, 370-371, 392-393,
477. His condition has deteriorated, with increased frequency with which he has presented to the

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emergency department. Since 2009, Plaintiff has sought emergency treatment for back and neck pain
on five occasions. See Tr. at 207-210, 211-214, 215-218, 222-225, 335-338. In October 2008,
Plaintiff began treatment at the Affordable Healthcare Clinic in Waskom, Texas and seen by Kenneth
Volk, Richard Goodrich, and Carson Holtzclaw, certified physician’s assistants (“PA-C”), under the
supervision of Dr. Marian Querry. See Tr. at 229.
Between October 2008 and July 2011, Plaintiff presented to the clinic on approximately 50
occasions and complained of back pain. See Tr. at 29, 233, 237, 241, 245, 249, 253, 257, 261, 265,
269, 273, 277, 281, 285, 289, 293, 297, 301, 305, 309, 313, 317, 321, 325, 329, 406, 410, 414, 418,
422, 426, 430, 434, 443, 457, 451, 455, 459, 463, 467, 471, 475, 479, 483, 487, 491, 495. Findings
on examination included iliosacral pain with deep palpation; perispinal pain with deep palpation;
limited range of motion on flexion, rotation, and lateral bending secondary to pain; and lumbar and
thoracic radiculopathy. He was diagnosed with lumbosacral spondylosis, cervical disc degeneration,
joint pain, lumbago, myalgia, myositis, hypertension, hyperlipidemia, and GERD, and prescribed
Lortab, Darvocet, Norco, Flexeril, and Indocin for pain, muscle spasm, and inflammation. See Tr. at
Id.
Plaintiff was examined by Dr. Rhesa Sanni-Thomas; who described “boggy” and “ropy”
thoracic paraspinal muscles with paraspinal muscle hypertrophy. See Tr. at 346, 348.

Dr. Sanni-

Thomas diagnosed Plaintiff with muscle spasms, thoracic spine pain, and low back strain. In
September 2010, x-rays of the lumbosacral spine confirmed mild spondylosis at L3/4 as well as facet
degenerative changes at L4/5 and L5/S1. See Id.. A follow-up MRI revealed mild to moderate left
neural foraminal stenosis at L3/4 and L4/5 due to foraminal disc protrusion; minimal disc bulge at

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L2/3; annular fissure within the protruding disc at L3/4; and mild facet degenerative changes at L5/S1.
Id.
Hearing Testimony
Plaintiff testified at the hearing regarding his medical issues and the treatment he had sought
for his back issues. Plaintiff experiences pain if he sits or stands for too long during the day. See Tr.
at 43-45. Plaintiff testified that his back pain had worsened over the years. Plaintiff also testified that
the medication he took to alleviate the pain from his symptoms had side effects. See Tr. at 52. The side
effects include extreme drowsiness, feeling “loopy” or “hazy” and difficulty in concentrating. Id.
During the hearing, the ALJ asked several questions of the VE

regarding Plaintiff’s

employment prospects. The VE was not asked, however, about physical limitations that Plaintiff faced
as a result of his impairments which were found to be severe by the ALJ. The only question that
referred to Plaintiff’s physical limitations was a query about missing work due to illness. The VE
testified that, if an individual were to miss two days of work per month, that would eliminate all jobs.
See Tr. at 63.
B.

The ALJ’s Step Five Analysis

“To determine whether a claimant is disabled, the Commissioner must utilize a five-step,
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sequential process.” Villa v. Sullivan, 895 F.2d 1019, 1022 (5 Cir. 1990). Prior to moving to Step
Four, the Commissioner must determine the claimant's Residual Functional Capacity (“RFC”), or the
most that the claimant can do given his impairments, both severe and non-severe. 20 C.F.R. §§
416.920(b)-(f). The RFC is the most a claimant can do in a work setting despite any limitations that
claimant may have. 20 C.F.R. § 416.945(a)(1). When determining a claimant’s RFC, the ALJ must
consider all medically determinable impairments of which he is aware, including those that are not
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“severe”. 20 C.F.R. § 416.945(a)(2); see also 20 C.F.R. §§ 416.920[c]), 416.921, and 416.923. The
ALJ must make clear factual findings on this issue for his decision to stand. See Abshire v. Bowen, 848
F.2d 638, 641 (5th Cir. 1988).
The ALJ

ultimately determined that the medical evidence did not substantiate Plaintiff’s

allegations of disability. See Tr. at 17. The ALJ concluded, at Step Five of the sequential evaluation
process, that Plaintiff was not disabled because he could perform jobs that existed in significant
numbers in the national economy. See Tr. at 16-17, Finding 10; see also 20 C.F.R. § 404.1520(a)(4)(v).
Plaintiff argues that the ALJ erred in the Step Five finding.
Plaintiff argues that the Commissioner did not meet its burden of proof to establish that a
significant number of jobs exist that Plaintiff could still perform, and contends that the ALJ could not
properly rely on the vocational expert’s testimony because the questions posed to the VE did not
contain limitations occasioned by his severe impairments. Pl. Br. at 14. The Plaintiff contends that the
Commissioner failed to establish the existence of other work, in significant numbers, which he can
perform when considering his residual functional capacity, even as found to exist by the ALJ. The
Plaintiff argues that the decision of the Commissioner is therefore not supported by substantial
evidence.
In determining whether a claimant can perform alternative, available work, the Commissioner
may rely on a vocational expert and/or the DOT to satisfy her burden of proof at Step Five. 20 C.F.R.
§ 404.1566(d)-(e); Carey, 230 F.3d at 145. The Commissioner often utilizes vocational experts because
of their knowledge of specific job requirements and working conditions. See Vaughan v. Shalala, 58
F.3d 129, 132 (5th Cir. 1995). In this case, the ALJ relied on the VE testimony to determine that
Plaintiff could perform other work and was therefore not disabled.
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C.

Application of Law to the Present Case

Regulations define a severe impairment as “any impairment or combination of impairments
which significantly limits [a claimant’s] physical or mental ability to do basic work activities.” 20
C.F.R. § 416.920(c)). The Fifth Circuit has held that an impairment is not 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.” Stone v. Heckler, 752 F.2d 1099, 1101 (5th Cir. 1985).) The corollary
of Stone is that, when an ALJ has determined that an impairment is severe at Step Two, he has found
that the impairment limits or potentially limits the claimant’s ability to work. See also Allsbury v.
Barnhart, 460 F. Supp. 2d 717,727 (E.D. Tex. 2006)(the ALJ could not have found that plaintiff's
nonexertional mental impairments do not significantly affect her residual functional capacity); see also
20 C.F.R. § 404.1520(c) (2005). An ALJ cannot find that any severe mental impairment does not
significantly affect RFC. Id.; 20 C.F.R. § 404.1520(c)(2005).
The ALJ's determination that, while Plaintiff cannot perform any past relevant work, there is
other work he can perform, is not supported by substantial evidence. The questions posed by the ALJ
to the VE did not reference the limitations caused by Plaintiff’s severe impairments. The Fifth Circuit
has held that questions posed to the VE must precisely set out a claimant's individual physical and
mental impairments, including pain and non-exertional impairments. Bowling v. Shalala, 36 F.3d 431,
436 (5th Cir. 1994). Thus, a vocational expert's answers to hypotheticals which fail to take into account
all of a claimant's limitations cannot constitute substantial evidence that the claimant is not entitled to
benefits. Boyd v. Apfel 239 F.3d 698, 707 (5th Cir. 2001). The Commissioner can only disregard
impairments for which substantial evidence supports his conclusion that claimant does not suffer from

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those impairments. See Sms v. Apfel, 224 F.3d 380, 381 (5th Cir. 2000); Dominque v. Barnhart, 388
F.3d 462, 463 (5th Cir. 2004).
Here, the ALJ failed to set out precisely Plaintiff’s impairments in his questions to the VE and
failed to include the side effects of his medications. See Tr. at 59-63. The VE did confirm that none
of the positions he listed would allow an employee to miss more than a two days of work per month.
See Tr. at 63.
Despite evidence in the record that Plaintiff experiences debilitating pain and cannot sit or stand
for extended periods of time and that Plaintiff relies on prescription medication for pain relief, the ALJ
impermissibly disregarded or discounted Plaintiff’s own testimony and the medical evidence in the
record and instead impermissibly relied on her own medical opinions to determine that there exist in
the national economy jobs that the Plaintiff could perform. Where “the ALJ impermissibly relied on
his own medical opinions as to the limitations presented [by claimant's impairments] to develop his
factual findings, [those findings are] not supported by substantial evidence. Williams v. Astrue, No. 0830820 (5th Cir. 2009); see also Ripley v. Chater, 67 F.3d 552, 557-58 (5th Cir. 1995). There is in
insufficient evidence in the record to establish, given his limitations, that jobs exist which Plaintiff
could perform.
The Commissioner, in response to this argument, states that “Plaintiff’s claim that the ALJ’s
RFC assessment was flawed lacks merit. Because the ALJ’s hypothetical question included all of
Plaintiff’s supported abilities and limitations, the VE’s response provides substantial evidence
supporting the ALJ’s step five decision”. See Defendant’s Brief (“Def. Br.”) at 9. Where, as here, the
hypothetical questions fail to take into account all of a claimant's limitations, the VE's answers do not
constitute substantial evidence to support the ALJ's Step Five determination. Boyd v. Apfel , 239 F.3d
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698, 707 (5th Cir. 2001). The ALJ's Step Five determination is not supported by substantial evidence
because the ALJ failed to include all of Plaintiff’s impairments in the hypothetical question posed to
the VE. Therefore, the VE's answer cannot constitute substantial evidence.
Therefore, it cannot be said that the ALJ determination at Step Five is supported by substantial
evidence contained in this record. The Commissioner has not sustained the burden of proving that
there are jobs in significant numbers in the national economy that the Appellant can perform gainfully.
See 20 C.F.R. 416.920(f). This case should be remanded for proper treatment of the vocational issues
in relation to the Plaintiff's RFC. See SSR 96-8p, 20 C.F.R. 404.1545 and 20 C.F.R. 416.945.
Therefore, a reversal of the Commissioner’s decision denying benefits and remand of Plaintiff’s claim
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is necessary. See Carey v. Apfel, 230 F.3d 131, 143 (5 Cir. 2000). This error requires a remand; as a

result, the remainder of the Plaintiff’s claims need not be addressed.
V.

ORDER
In light of the foregoing, it is accordingly ordered that the above-entitled social security action

is REVERSED and REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) with instructions
for further consideration consistent with the findings above.

SIGNED this 19th day of December, 2011.
So ORDERED and SIGNED this 30th day of September, 2014.

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RODNEY GILSTRAP
UNITED STATES DISTRICT JUDGE

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