Lewis v. Astrue

Filing 30

Memorandum Opinion and Order: The hearing decision is reversed and this case is remanded to the Commissioner of Social Security for further proceedings consistent with this opinion. (see order) (Ordered by Magistrate Judge Jeff Kaplan on 11/19/2009) (axm)

DISTRICT COURT IN THE LINITEDSTATES OF NORTHERN DISTRICT TEXAS
D A L L A S DIVISION

BARBARA LEWIS
Plaintiff,

VS. M I C H A E LJ. ASTRUE, of C o m m i s s i o n e r SocialSecurity
Defendant.

$ $ $ $ $ $ $ $ $ $

N O . 3- 0 7 - C V - 1 9 8 2 - B D

M E M O R A N D U M OPINION AND ORDER judicialreview finaladverse oftheCommissioner decision ofa Lewisseeks P l a i n t i f fBarbara decision the stated herein, hearing pursuant 42U.S.C. a05(g),Forthereasons to Security o f Social $ i s reversed.
I. P l a i n t i f f allegesthat she is disableddue to a variety of ailments,including bilateral carpal t u n n e l syndrome, degenerativedisk disease of the cervical and lumbar spine, tendonitis, joint disease both hips and both in arthritis,a flexor sheathcyst, and degenerative carpometacarpal k n e e s . After her application for disability benefits was denied initially and on reconsideration, plaintiff requested a hearing before an administrative law judge. That hearing was held on S e p t e m b e r20,2006. At the time of the hearing,plaintiff was 63 yearsold. She is a high school g r a d u a t e ,attendedcollege for one year, and has past work experienceas a hospital insurance gainful activity sinceshewas injured in an in Plaintiff has not engaged substantial representative. a u t o m o b i l eaccidenton December10, 2003.

The ALJ found that plaintiff was not disabledand thereforenot entitled to disability benefits. Although the medical evidenceestablishedthat plaintiff suffered from carpal tunnel syndromeand the that the severityof thoseimpairmentsdid not c e r v i c a land lumbar spondylosis, judge concluded m e e t or equalany impairmentlisted in the SocialSecurityregulations.The ALJ fuither determined that plaintiff had the residual functional capacity to perform the full range of sedentarywork, i n c l u d i n g her past relevant work as a hospital insurancerepresentative.Plaintiff appealedthat d e c i s i o nto the Appeals Council. The Council affirmed. Plaintiff then filed this action in federal court. il. I n two broad groundsfor relief, plaintiff contendsthat: (l) substantialevidencedoes not supportthe finding that shehasthe residualfunctional capacityto perform the full rangeof sedentary work; and (2) the ALJ erred in finding that she can perform her past relevant work as a hospital i n s u r a n c erepresentative. A. whetherthe Commissioner's is J u d i c i a lreview in socialsecuritycases limited to determining were usedto evidenceand whetherthe proper legal standards by d e c i s i o nis supported substantial e. the e v a l u a t e evidenc See42 U.S.C.$ a05(g);Ripleyv. Choter,67 F.3d 552, 555(5th Cir. 1995). mind might acceptas S u b s t a n t i a levidenceis defined as "such relevantevidenceas a reasonable Ri . C. a d e q u a t e t o s u p p o r t a c o n c l u s i o n c"h a r d s o n v . P e r a l e s , 4 0 2 U . S . 3 8 9 , 4 0 l , 9 l S .1 4t2 0 , 1 4 2 7 , S d 2 8 L . E d . 2 d 5 4 2 ( 1 9 7 l ) ; A u s t i n v . h a l a l a , 9 9 4 F . 2 1 1 7 0 ,1 1 7 4 ( 5 t h C i r .1 9 9 3 ) .I t i s m o r e t h a n a . Richardson,9I S.Ct. at 1427 The district court may not s c i n t i l l a but lessthan a preponderance. reweigh the evidence or substituteits judgment for that of the Commissioner,but must scrutinize

whethersubstantial evidencesupportsthe hearingdecision. Hollis v. the entire recordto ascertain B o w e n , 8 3 7 . 2 d1 3 7 8 ,1 3 8 3( 5 t hC i r . 1 9 8 8 ) . F A disabledworker is entitledto monthly socialsecuritybenefitsif certainconditionsaremet. 4 2 U,S.C. g a23(a). The Act defines "disability" as the inability to engagein substantialgainful activity by reasonof any medically determinablephysical or mental impairment that can be expected t o result in deathor last for a continuedperiod of l2 months. Id. $ 423(dXl )(/t): Cook v. Heckler, has a 7 5 0 F.2d 391,393 (5th Cir. 1985). The Commissioner promulgated five-stepsequential e v a l u a t i o nprocessthat must be followed in making a disability determination: l. whetherthe claimant T h e hearingofficer must first ascertain gainful activity. A claimantwho is in i s engaged substantial of w o r k i n g is not disabledregardless the medical findings. whetherthe claimed T h e hearingofficer must then determine i m p a i r m e n t is "severe." A "severe impairment" must significantly limit the claimant'sphysical or mental ability to d o basic work activities. This determinationmust be made s o l e l y on the basisof the medicalevidence. T h e hearing officer must then determineif the impairment m e e t s or equals in severity certain impairments described i n Appendix I of the regulations. This determination is m a d eusing only medicalevidence. I f the claimant has a "severeimpairment" covered by the r e g u l a t i o n s ,the hearingofhcer must determinewhetherthe c l a i m a n t can perform his past work despiteany limitations. If the claimant doesnot have the residual functional capacity to perform pastwork, the hearingofficer must decidewhether the claimant can perform any other gainful and substantial w o r k in the economy. This determinationis made on the and work experience, b a s i sof the claimant'sage,education, r e s i d u a lfunctionalcapacity.

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a S e egenerally,20 C.F.R. $ 404.1520(b)-(0.The claimanthasthe initial burdenof establishing U.S. 137,146n.5, 107S.Ct. Bowenv. Yuckert,482 d i s a b i l i t yin the first four steps this analysis. of

2287,2294n.5,96L.8d.2d I 19 (1987). The burdenthen shiftsto the Commissioner showthat to the claimant is capableof performing work in the national economy. Id. Afinding that the claimant i s disabledor not disabled at any point in the five-step review is conclusiveand terminatesthe a n a l y s i s .Lovelacev. Bowen,813F.2d 55, 58 (5th Cir. 1987). I n reviewing the propriety of a decisionthat a claimantis not disabled,the court'sfunction i s to ascertain whether the record as a whole contains substantialevidence to support the C o m m i s s i o n e r ' sfinal decision. The court weighs four elementsto determinewhether there is and of s u b s t a n t i aevidence disability: (l) objectivemedicalfacts;(2) diagnoses opinionsoftreating l (3) evidence pain and disability; and (4) the claimant'sage, of a n d examiningphysicians; subjective e d u c a t i o n ,and work history. Martinez v. Chater,64 F.3d 172, 174 (5th Cir. 1995),citing Wrenv. S u l l i v a n , g z l F . 2 d l 2 3 , 1 2 6 ( 5 t h C i r . 1991).TheALJhasadutytofullyandfairlydevelopthefacts r e l a t i n g to a claim for disability benefits. Ripley,67 F.3d at 557. If the ALJ does not satisfuthis justified. Id, However,procedural perfectionis not d u t y , the resultingdecisionis not substantially r e q u i r e d . The court will reversean administrativeruling only if the claimant shows that his Tex. 1997). 980, 984 (1lLD. rightswere prejudiced.Smithv. Chater,962F.Supp. substantive B. of the P l a i n t i f f challenges assessment her residualfunctionalcapacityon the groundthat the A L J failed to develop the record by ordering a consultativeexamination to fully evaluatethe limitations of her carpal tunnel syndrome. It is well-establishedthat the ALJ has a duty to fully and f a i r l y develop the facts relating to a claim for disability benefits. See Cornett v. Astrue, 261 F e d . A p p x . 644,2008 WL 58822at *2 (5th Cir. Jan.3, 2008);Ripley,67 F.3d at 557. This duty probeinto, inquire of, and explorefor all the and conscientiously r e q u i r e sthe ALJ to "scrupulously r e l e v a n t facts." Kane v. Heckler, 731 F.2d 1216, 1220 (5th Cir. 1984) (citing cases). When the

existing medical evidence is inadequateto make a disability determination, the Social Security regulations require the ALJ to develop the record by recontactingthe claimant's medical sourcesor r e f e r r i n gthe claimantfor a consultative examination.See20 C.F.R. $ 404.l5l2(e)-(0. Additional e v i d e n c eor clarifuing reports may be necessary when the medical opinion of a treating source appears lackingor inconsistent. SSR96-2p,1996WL374188 *4 (1996).However, See at aremand that the f o r further developmentof the record is appropriateonly when the plaintiff establishes . a d d i t i o n a levidencemight have led to a different decision SeeNewton v. Apfel,209 F.3d 448,458 ( 5 t h Cir. 2000) (reversalappropriate only if claimantshowsprejudiceresultingfrom ALJ's failure t o requestadditionalinformation);see also Brock v. Chater,84 F.3d 726,728 (5th Cir. 1996), 'could and would have adduced q u o t i n g Kane,73L F.2d at 1220 (plaintiff must "show that he evidencethat might have alteredthe result"'). T h e gravamenof plaintiffs disability claim is that the pain causedby her carpal tunnel for s y n d r o m epreventsher from using her handsmore than occasionally reaching,grasping,or fine a hearing,Dr. Alec D. Steele, m a n i p u l a t ion. (SeeTr. at 476, 487 488, 497). At the administrative , non-treating medical expert, was askedby the ALJ whether he had enough information to form an o p i n i o n concerningthe severityof plaintiffs allegedphysicalimpairments. Dr. Steeleresponded: P r o b a b l ynot quite . . . I know she has the carpal tunnel syndrome and with the diagnosis which indicateconsistent on b a s e d the records, a p p a r e n t l y NCV abnormalities,but there aren't details as to the s e v e r i t y of pain, which, of course,is subjective. There aren't any g o o d , there's no physical examination with respect to sensory c h a n g e s ,there'sno physical exam with respectto motor changes, there'sno physical exam with respectto muscle atrophy in the hands and, therefore, I can't get much of a handle on the severity of the problem per se in terms of - and what limitations that might impose. (ld. at 476-77). Later in the hearing, after determining that plaintiffs past relevant work required " a c t i v e use of the handsthroughoutthe day," the ALJ askedDr. Steelewhetherthere was enough

information in the record to determinewhether plaintiff was capableof such activity. (Id. at 484). D r . Steeletestified,"You probablyneedto find out more,you don'thaveenoughinformationto say t h a t she can't do that." (Id.). Dr. Steelethen recommended neurologicalexamination. (ld.). a to Although the ALJ agreedthat additional evidencewas necessary make a disability determination, and consideredordering a neurological examination,an orthopedic examination, x-rays, and other the t e s t s , (seeid. at 484,489),thejudge ultimately decidedagainstthat option. Instead, ALJ asked p l a i n t i f f to obtain additionalmedicalassessments from two of her treatingphysicians--Dr. Todd C. Johnson, an orthopedic surgeon, and Dr. Denton Watamull, a hand surgeon. (Id. at 493, 498). Specifically, the ALJ askedboth doctorsto "take particular note of what the hand limits were," (id.), and wanted Dr. Watamull to explain the extentto which carpaltunnel releasesurgerywould improve the functioning of plaintiffs right hand. (1d. at 500). D r . Watamull refused to complete the disability form unless plaintiff had a functional 28,2006, Dr. Watamull wrote: c a p a c i t yexamination. In a follow-up note datedSeptember fill [ I ] havetold her I would be unableto accurately out the disability form given complexity and fact we haven't seenher in 2 years. Would recommendan FCE [functional capacityexamination] if she w a n t s us to fill out form: We are a surgicalpractice,not a disability e v a l u a t i n gpractice. her H a v e also encouraged to follow up with physiatristuntil readyto pursue surgery. ( I d . at 375) (emphasisadded). It is not clear whether plaintiff returnedto Dr. Johnsonafter the 20,2006. However,the day beforethe hearing,Dr. Johnson a d m i n i s t r a t i v ehearingon September indicatingthat plaintiff could perform reachingand handling c o m p l e t e da medicalsourcestatement a c t i v i t i e s on a constantbasis and fingering on a frequentbasis. (Id. at 370). Dr. Johnsonalso expressedhis opinion that carpal tunnel releasesurgery would improve plaintiffs enduranceand

hand work, but went on to say that plaintiff neededto seea physicalmedicine and rehabilitation s p e c i a l i s tand"have afunetional capacityevaluation.^ (ld.at375) (emphasis added). I n determiningthat plaintiff could perform the full rangeof sedentary work, including her p a s trelevantwork asa hospitalinsurance representative, ALJ foundthat plaintiff "canconstantly the reach overhead,forward, and handling with both hands, and frequent bilateral fingering." (ld. at 4 5 6 ) . However,thereis insufficientmedicalevidencein the recordto enablethe ALJ to make such motor a finding. As noted by Dr. Steele,plaintiff never had a physical examinationto assess changes,sensorychanges,or muscle atrophy in the hands,which would inform the ALJ as to what limitations might result from her carpal tunnel syndrome, (Id. at 476-77). Nor does the record c o n t a i n any medical findings regardingthe severity of plaintiffs pain. Most significantly, the t e s t i f f i n g medical expert and plaintiffs two treating physiciansall agreed that a consultative the in was warranted this case. (/d at372,375, 484). In view of this evidence, ALJ examination s h o u l d have developedthe recordby orderingsuchan examination. opinion that plaintiff can perform reachingand T h e Commissionerpoints to Dr. Johnson's handling activities on a constantbasis and fingering on a frequent basis as substantialevidenceto obtainedfrom Dr. s u p p o r tthe ALJ's decision. (ld. at458). However,the medicalsourcestatement J o h n s o nis nothing more than a nakedopinion that doesnot reflectwhetherit was basedon a recent p h y s i c a l examinationof plaintiff. Not only does this medical source statementnot addressthe d e f i c i e n c i e snoted by Dr. Steele,but Dr. Johnsonhimself recommendedthat plaintiff "have a medical evidencecannot f u n c t i o n a l capacityevaluation." (Id. at 375). Where,as here,necessary b e obtained from a treating source, the claimant should be asked to attend a consultative e x a m i n a t i o n .See20 C.F.R.$ 404.1512(f);seealso SSR96-2p ,1996 WL 374188 at *4 (additional when the treating source'sopinion appearslacking). The medical e v i d e n c e may be necessary

that plaintiff should be further evaluatedto determine the extent of her limitations consensus examination.Had suchan t r i g g e r e dthe ALJ's duty to developthe recordby orderinga consultative examination been conducted,it might have supportedplaintiffs testimony that the pain causedby her carpal tunnel syndrome prevented her from using her hands on a continuous basis, thereby precluding a return to her past relevant work. (See Tr. at 498-99). On these facts, a remand is WL Admin.,No.7-07-CV-021-BH,200E 3287100 r e q u i r e d .SeeMackv. Comm'rofSocialSecurity a t *9 Qll.D. Tex. Aug. 4, 2008) (remandrequiredwhere medical expert opined that consultative I was needed). evaluation

CONCLUSION of to is is and decision reversed this case remanded the Commissioner Social T h e hearing with consistent this opinion. for S e c u r i t y furtherproceedings S OORDERED. 19,2009. D A T E D : November

LAN l S T A T E Sv l A G l S T I . A T E JLIDCH

I By remanding this casefor further administrative proceedings,the coult does not suggestthat plaintiff is or should be found disabled.