Moore v. Astrue

Filing 20

FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE - RECOMMENDATION The hearing decision should be affirmed in all respects. Any party who objects to any part of this report and recommendation must file specific written objections within l0 days after being served with a copy. (Ordered by Magistrate Judge Jeff Kaplan on 11/13/09) (jeh) Modified on 11/13/2009 (twd).

IN THE UNITEDSTATES DISTRICT COURT NORTHERN DISTRICT TEXAS OF D A L L A SDIVISION
H O L L T S MOORE Q. Plaintiff, VS. M I C H A E L J. ASTRUE, C o m m i s s i o n e r SocialSecurity of
Defendant.

N O . 3-07-CV-2017-B

F I N D I N G S AND RECOMMENDATION OF THE U N I T E D STATES MAGISTRATE JUDGE P l a i n t i f f Hollis Q. Moore seeks judicial review of a final adverse decision of the statedherein,the to C o m m i s s i o n e rof Social Securitypursuant 42 U.S.C. $ a05(g). For the reasons h e a r i n gdecisionshouldbe affirmed. I. P l a i n t i f f allegesthat he is disableddue to a variety of ailments, including cervical disc neck andback pain, a shoulder depression, d i s e a s ethe lossofpart ofa toe, carpaltunnel syndrome, , i m p i n g e m e n t ,and high blood pressure. After his applicationfor disability benefits was denied plaintiff requested hearingbefore an administrativelaw judge. a i n i t i a l l y and on reconsideration, 7,2006. At the time of the hearing,plaintiff was 45 yearsold. T h a t hearingwas held on September He is a high school graduate,attendedcollege, and has past work experienceas an office manager and a production coordinator. Plaintiff has not engaged in substantial gainful activity since December 1,2003. not andtherefore entitledto disabilitybenefits. T h e ALJ found that plaintiff wasnot disabled that plaintiff sufferedfrom cervical disc diseaseand A l t h o u g h the medical evidenceestablished

hypertension,the judge concludedthat the severity of those impairments did not meet or equal any impairment listed in the social security regulations. The ALJ further determinedthat plaintiff had the residual functional capacity to perform a limited range of sedentarywork, but could not return t o his pastrelevantemployment. Relying on the testimonyof a vocationalexpert,thejudge found job that plaintiff was capableof performing the requirementsof the entire unskilled sedentary base, which representsa multitude of jobs that exist in significant numbers in the national economy. Plaintiff appealedthat decision to the Appeals Council. The Council affirmed. Plaintiff then filed t h i s action in federalcourt. II. I n a single ground for relief, plaintiff contendsnew medical evidencesubmitted to the A p p e a l s Council establishes that he suffersfrom a "severe"shoulderimpairment. 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 d e c i s i o nis supportedby substantial e v a l u a t e evidenc See42 U.S.C.$ a05(g);Ripleyv. Chater,67 F.3d 552, 555(5th Cir. 1995). the e. mind might acceptas S u b s t a n t i a levidenceis defined as "such relevantevidenceas a reasonable v. U.S. 389,401,9l S.Ct.1420,1427, a d e q u a t e supporta conclusion."Richardson Perales,402 to 28L.F;d.zd842(1971);Austinv, Shalala,994F.2d1170,Il74(sthCir. 1993). Itismorethana Richardson,9l S.Ct. at 1427 The district court may not . s c i n t i l l a but lessthan a preponderance. r e w e i g h the evidenceor substituteits judgment for that of the Commissioner, must scrutinize but the entire record to ascertainwhether substantialevidencesupportsthe hearing decision. Hollis v. B o w e n , 8 3 7F.2d 1378,1383(5th Cir. 1988).

A disabledworker is entitledto monthly socialsecuritybenefitsif certainconditionsaremet. 4 2 U.S.C. 5 an@). The Act defines "disability" as the inability to engagein substantialgainful activity by reasonof any medically determinablephysical or mental impairment that canbe expected t o result in deathor last for a continuedperiod of l2 months. Id. $ 423(d)(l)(/t); Cookv. Heckler, has promulgated five-stepsequential a 7 5 0 F.2d 391,393 (5th Cir. 1985). The Commissioner e v a l u a t i o nprocessthat must be followed in making a disability determination: l. The hearingofficer must first ascertain whetherthe claimant gainful activity. A claimantwho is i s engagedlnsubstantial of w o r k i n g is not disabledregardless the medical findings. The hearingofficer must then determinewhetherthe claimed i m p a i r m e n t is "severe." A "severe impairment" must physicalor mental ability to s i g n i f i c a n t l ylimit the claimant's 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 determinationis m a d eusingonly medicalevidence. I f the claimant has a "severeimpairment" covered by the r e g u l a t i o n s ,the hearingofficer must determinewhether the c l a i m a n tcan perform his pastwork 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 b a s i sof the claimant'sage, education,work experience, r e s i d u a lfunctional capacity.

2.

3,

4.

5.

a S e egenerally,2AC.F.R. $ 404.1520(b)-(0.The claimanthasthe initial burdenof establishing of U.S. 137 146n.5, 107S.Ct. d i s a b i l i t yin the first four steps this analysis.Bowenv. Yuckert,482 , T. 2 2 8 7 , 2 2 9 4 n . 5 , 9 6 L . E d . z d 1 1 9 ( 1 9 8 7 )h e b u r d e n t h e n s h i f t s t o t h e C o m m i s s i o n e r t o s h o w t h a t t h e claimantis capable performingwork in the nationaleconomy.Id. A finding that the claimant of

is disabledor not disabledat any point in the five-stepreview is conclusiveand terminatesthe Lovelace Boweno F.2d55,58 (5th Cir. 1987). v. analysis. 813 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 substantial evidence to support the Commissioner's final decision. The court weighs four elements to determine whether there is and s u b s t a n t i aevidenceof disability: (l) objectivemedicalfacts;(2) diagnoses opinionsoftreating l (3) a n d examiningphysicians; subjectiveevidence pain and disability; and (4) the claimant'sage, of e d u c a t i o nand work history. Martinezv. Chater,64F.3d 172, 174(5th Cir. 1995),citing Wrenv. , S u l l i v a n , 9 2 5 F . 2 d I 2 3 , l 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 doesnot satisff this justified. 1d. 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 rightswere prejudiced.Smithv. Chater,962F.Supp.980,984 (N.D. Tex. 1997). substantive B. with diagnosed hearingon SeptemberT,2006,plaintiffwas S h o r t l y b e f o r ethe administrative an " i m p i n g e m e n tsyndrome"of the right shoulder.(SeeTr. at 641-45,652-59).Dr. Phillip Hansen, examinedplaintiff on August 4,2006 and September25,2006.(ld. at643-44). o r t h o p e d i csurgeon, T r e a t m e n tnotes from those examinationsindicate that plaintiffs right shoulderhad a "positive impingement sign" with "weaknessand pain with abduction extemal rotation more than internal r o t a t i o n againstresistence."(Id.). On October2,2006, plaintiff was examinedby his primary care p h y s i c i a n ,Dr. SuzanneMonday, who noted a decreased rangeof motion and pain with bilateral s h o u l d e rabduction. (ld. at654). Less than two weeks later, on October 11,2006, Dr. Hansen p e r f o r m e d an arthroscopicsurgical procedureon plaintiffs right shoulder. Dr. Hansen'spost-

operativereport confirmed the diagnosisof "impingementsyndrome." (Id. at 641-42). Although p l a i n t i f f did not submit any of this medical evidenceto the ALJ before the hearingdecision was i s s u e don November22,2006, he did provide the evidenceto the AppealsCouncil. (Id. at 7). The C o u n c i l considered additionalevidence, affirmedthe hearingdecision. (ld. at4-5). Plaintiff but the n o w contendsthat the case should be remandedbecause the administrative record as a whole, including the new evidence submitted to the Appeals Council, demonstrates that he suffers from a " s e v e r e "shoulderimpairment. justifies a remandonly if it is material. SeeCastillo v. Barnhart,325 F.3d N e w evidence is if: to 5 5 0 ,551-52(5th Cir. 2003). Evidence "material" (1) it relates the time periodfor which the probabilitythat it would havechanged d i s a b i l i t y benefitswere denied;and (2) thereis a reasonable t h e outcome of the disability determination. Id. If new evidenceis presentedwhile the caseis p e n d i n g review by the Appeals Council, a court will review the record as a whole, including the additional evidence, to determine whether the Commissioner's findings are still supported by substantialevidence. Higginbothamv.Barnhart,163Fed.Appx.2T9,2Sl-82,2006WL166284at * 2 (SthCir.Jan.10,2006);seealsoJonesv. Astrue,22S Fed.Appx.403,406-07 ,2007 WL 1017095 a t *3 (5th Cir. Mar. 29,2007), cert. denied,128S.Ct.707 (2007)(warningagainstremandingcases b a s e d on new evidence presentedto the Appeals Council without meaningful regard for the substantial evidencestandard). H e r e ,plaintiffs new medical evidenceis not material. It is merely cumulativeof evidence and a c o n s i d e r e dby the ALJ, including numerousreportsby plaintiff of chronic pain, weakness, (see,e.g. id. at 68, 77,667-70),plaintiffs l i m i t e d rangeof motion in his armsand right shoulder, id. t e s t i m o n ythat he had beendiagnosed with "impingementsyndrome"in his shoulder,(see at666-

68, 705), and an MRI report that noted "hypertrophicbony changes"and "possibleimpingement s y n d r o m e "of the right shoulder,(seeid. at 546,561). the M o r e importantly, none of the new evidenceaddresses severity of plaintiffs alleged s h o u l d e r impairment within the meaning of the Social Security Act. "[T]he diagnosis of an

i m p a i r m e n t - - w i t h o u t more--is not sufficient to establisha severe impairment or a disability." M c C l a r c h yv. Barnharf, No. ASA-03-CA-0914-X,2004 WL 2810100at *6 (W.D. Tex Dec. 3, 2 0 0 4 ) ,rec. adopted,2005 WL 1593395(W.D. Tex. Jun. 30, 2005), citing Hamesv. Heckler, 707 F . 2 d 1 6 2 , 1 6 5 ( 5 t h C i r .9 8 3 )s e e a l s o H i l l v . A s t r u e , N o . H - 0 8 - 3 1 6 0 , 2 0 0 9 W L 2 9 0 1 5 3 0 a t * 7 ( S . D . 1 ; impairment T e x . Sept. 1,2009). Rather,a plaintiff bearsthe burdenof proving that the diagnosed in h a smore than a minimal effect on his ability to engage work relatedactivities. McClatchy,2004 W L 2810100at *6; see also Stonev. Heckler,752 F.zd 1099, ll01 (5th Cir. 1985)("[A]n only if it is a slight abnormality[having] suchminimal as i m p a i r m e n tcan be considered not severe to e f f e c t on the individual that it would not be expected interferewith the individual'sability to work, plaintiff doesnot specifuhow his of i r r e s p e c t i v e age,educationor work experience.").In this case, plaintiff speculates that s h o u l d e rimpingementactuallyinterferedwith his ability to work. Instead, to'interfere'with " i m p a i r e drangeof motion of the shoulderof the dominantarm would be expected [ h i s ] ability to performthe work activitiesof reachingandhandling." (SeePlf. MSJ Br. at l6). Such in or by a n "expectation"is not supported the new medicalevidence, any otherevidence, the record. that N o t a b l y , neitherDr. Hansennor Dr. Monday suggested plaintiffs right shoulderimpingement a f f e c t e dhis ability to perform work relatedactivitiesin general,or his ability to perform reaching probability that the new evidence a n d handling activitiesspecifically. Thus,thereis no reasonable decision. w o u l d have changedthe Commissioner's

RECOMMENDATION T h e hearingdecisionshouldbe affirmed in all respects. A copy of this report and recommendation shall be servedon all parties in the manner must file p r o v i d e d by law. Any party who objectsto any part of this report and recommendation l0daysafterbeingservedwitha copy.See28 U.S.C.$ 636(bXl); specificwrittenobjectionswithin F p p . R. Ctv. P. 72(b). In order to be specific, an objection must identi$ the specific finding or r e c o m m e n d a t i o n which objectionis made,statethe basisfor the objection,and speciff the place to judge'sreportand recommendation is wherethe disputeddetermination found. An i n the magistrate judge or by o b j e c t i o nthat merely incorporates reference refersto the briefing beforethe magistrate party from appealing will barthe aggrieved i s not specific. Failureto file specificwritten objections judge that areaccepted adopted the by or of t h e factualfindings and legalconclusions the magistrate AutomobileAss'n, d i s t r i c t court,exceptupon groundsof plain error. SeeDouglassv. UnitedServices 7 9 F . 3 d1 4 1 5 .1 4 1 7( 5 t hC i r . 1 9 9 6 ) . D A T E D : November13.2009.

JUDGE N1AGISTRATE S]'ATES