Peeples v. Commissioner of SSA
ORDER ADOPTING REPORT AND RECOMMENDATIONS for 14 Report and Recommendations. Signed by Judge Michael H. Schneider on 8/15/2014. (sm, )
IN THE UNITED STATES DISTRICT COURT
OF THE EASTERN DISTRICT OF TEXAS
ROBERT W. PEEPLES
COMMISSIONER OF SOCIAL
MEMORANDUM ORDER ADOPTING THE REPORT AND
RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
The above-entitled and numbered civil action was heretofore referred to United States
Magistrate Judge Caroline M. Craven pursuant to 28 U.S.C. § 636. The Report of the Magistrate
Judge which contains her proposed findings of fact and recommendations for the disposition of such
action has been presented for consideration.
Plaintiff filed objections to the Report and
Recommendation. The Court conducted a de novo review of the Magistrate Judge’s findings and
Plaintiff objects to the Magistrate Judge’s recommendation that Plaintiff’s above-entitled and
numbered social security cause of action be affirmed. Plaintiff first acknowledges that the Magistrate
Judge’s opinion discusses Plaintiff’s entire medical history from 2003 through the hearing, totaling
over 1100 pages of records. Plaintiff’s objections focus on whether he meets the requirements of
Listing 1.02. According to Plaintiff, the records show he has suffered back pain for over ten years,
and his back is continuing to deteriorate. Plaintiff asserts he has tried physical therapy multiple
times, as well as epidural steroid injections and nerve blocks, but they only provide temporary relief.
Plaintiff contends his pain and medications interfere with his concentration, and he also suffers from
anxiety and depression related to his chronic pain. Plaintiff asserts the ALJ erred in failing to
properly address the side effects of his medications, lack of concentration due to chronic pain, and
his other non-exertional limitations. Finally, Plaintiff argues he has demonstrated that he cannot
ambulate effectively without the use of a cane. Specifically, Plaintiff asserts he walks with a cane
for balance, as noted by Dr. Sarrett, and his use of a cane is causing problems with his right hand due
to a prior reconstruction surgery. According to Plaintiff, the combination of these impairments
prohibit work at the light exertional level.
To meet Listing 1.02, a claimant must show he had major dysfunction of a joint characterized
by gross anatomical deformity and chronic joint pain and stiffness with signs of limitation of motion
or other abnormal motion of the affected joint, and findings on appropriate medically acceptable
imaging of joint space narrowing, bony destruction, or ankylosis of the affected joint(s). See 20
C.F.R. pt. 404, supt. P., app. 1, § 1.02. Additionally, a claimant must show either involvement of one
major peripheral weight-bearing joint (i.e., hip, knee, or ankle), resulting in the inability to ambulate
effectively, or involvement of one major peripheral joint in each upper extremity (i.e., shoulder,
elbow, or wrist-hand), resulting in an inability to perform fine and gross movements effectively. See
id. at §§ 1.02A, 1.02B. Examples of ineffective ambulation include the inability to walk without an
assistive device, and the inability to carry out routine ambulatory activities, among others. See id.
at § 1.00B2b.
The Court agrees with the Magistrate Judge that Plaintiff has failed to show an inability to
ambulate effectively. As noted by the Magistrate Judge, the medical records do not support such a
finding. Although Plaintiff asserts his treating physician, Dr. Sarrett, noted in his records that
Plaintiff uses the cane for balance due to falls, Dr. Sarrett also noted in a December 15, 2010 office
visit that Plaintiff had a normal gait and posture (Tr. 1044). Plaintiff testified at the hearing the cane
was not actually prescribed but stated its use was an agreement between him and his primary
physician (Tr. 44). In an October 16, 2009 report, Dr. Pierce Nunley noted Plaintiff ambulated
without difficulty and without assistance. Plaintiff has not established difficulty effectively
The Magistrate Judge also correctly held the ALJ properly assessed Plaintiff’s non-exertional
limitations. (Report and Recommendation at pgs. 43-45). Specifically, the evidence of record shows
that Plaintiff did not experience significant work-related limitations from his alleged anxiety and
depression. As noted by the Magistrate Judge, the ALJ properly considered Plaintiff’s allegations
of pain and rendered a proper credibility assessment.
After reviewing the transcript, the briefs of the parties, and the Report and Recommendation,
the Court finds Plaintiff’s objections are without merit. The Court is of the opinion that the findings
and conclusions of the Magistrate Judge are correct. Therefore, the Court hereby adopts the Report
of the United States Magistrate Judge as the findings and conclusions of this Court. Accordingly,
it is hereby
ORDERED that the above-entitled Social Security action is AFFIRMED.
It is SO ORDERED.
SIGNED this 15th day of August, 2014.
MICHAEL H. SCHNEIDER
UNITED STATES DISTRICT JUDGE
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