McDaniel v. Astrue
Filing
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MEMORANDUM OPINION. (Ordered by Chief Judge Sidney A Fitzwater on 12/19/2011) (ykp)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
CLIFTON THOMAS McDANIEL,
Plaintiff,
VS.
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,
Defendant.
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§ Civil Action No. 3:11-CV-1221-D
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MEMORANDUM OPINION
Plaintiff Clifton Thomas McDaniel (“McDaniel”) brings this action under § 205(g)
of the Social Security Act, 42 U.S.C. § 405(g), for judicial review of the final decision of the
Commissioner of Social Security (“Commissioner”) denying his claim for Social Security
Disability Insurance (“SSDI”) benefits based on a finding that McDaniel was not disabled
prior to the date last insured. For the reasons that follow, the Commissioner’s decision is
affirmed.
I
On June 9, 2009 McDaniel applied for a period of disability and disability insurance
benefits, alleging he was unable to work due to an aneurysm of the aorta and cubital tunnel
syndrome of the right arm. He alleged a disability onset date of May 25, 2007. His
application for these benefits1 was denied initially and on reconsideration. McDaniel
1
McDaniel also successfully applied for Title XVI supplemental security income.
requested a hearing before an administrative law judge (“ALJ”), which was held in May
2010.
The ALJ followed the five-step sequential process prescribed in 20 C.F.R.
§ 404.1520(a)(4). At step one, she concluded that McDaniel had not engaged in substantial
gainful activity since the alleged onset date. At step two, the ALJ determined that since the
alleged onset date of disability, McDaniel had the following severe impairments: mild
degenerative joint disease of the lumbar spine, cubital tunnel syndrome of the right arm,
minimal degenerative disc disease of the cervical spine, tobacco abuse, and atherosclerotic
disease with aortic aneurysm. At step three, the ALJ found that McDaniel does not have an
impairment or combination of impairments that meets or medically equals any impairment
listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. The ALJ found that McDaniel has the
following residual functional capacity (“RFC”):
the claimant has the [RFC] to lift or carry twenty pounds
occasionally, ten pounds frequently, stand and/or walk for six
hours out of an eight-hour workday, sit for six hours out of an
eight-hour workday. This individual must avoid crawling. This
individual has the ability to reach, handle and finger on the right
upper extremity frequently with no limits on the left upper
extremity. This individual can reach overhead with the right
upper extremity occasionally with no limits on the left. This
individual must avoid concentrated extreme heat. This
individual retains the ability to perform jobs with detailed not
complex instructions.
R. 22. At step four, the ALJ found that McDaniel has been unable to perform any past
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relevant work. At step five, she found that, prior to February 21, 2009,2 the date McDaniel
turned 55 and his age category changed from “an individual closely approaching advanced
age” to “an individual of advanced age,” considering McDaniel’s age, education, work
experience, and RFC, there were jobs that existed in significant numbers in the national
economy that he could have performed. Id. at 24. Thus McDaniel was not disabled within
the meaning of the Act prior to February 21, 2009. The ALJ therefore concluded that
McDaniel’s application for SSDI benefits must be denied because he was not under a
disability within the meaning of the Act at any time through March 31, 2008, the date last
insured.
McDaniel sought review by the Appeals Council, which denied his request, and the
ALJ’s decision became the final decision of the Commissioner. McDaniel now seeks
judicial review, arguing that the decision that he was not disabled prior to February 21, 2009
is not based on substantial evidence because, in determining the functional severity of his
atherosclerotic disease, the ALJ failed to consider medical evidence of a second aneurysm
located in his right common iliac artery as well as medical evidence of additional
atherosclerotic disease in McDaniel’s left common iliac artery and both his left and right
internal iliac arteries.
2
The ALJ refers to both February 20 and 21, 2009 as the date McDaniel’s age
category changed to individual of advanced age. McDaniel turned 55 on February 21, 2009.
Accordingly, the court will assume that the ALJ intended in all instances to refer to February
21, 2009.
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II
A
The court’s review of the Commissioner’s decision is limited to determining whether
substantial evidence supports the decision and whether the Commissioner applied the proper
legal standards to evaluate the evidence. Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995);
Martinez v. Chater, 64 F.3d 172, 173 (5th Cir. 1995) (per curiam). “The Commissioner’s
decision is granted great deference and will not be disturbed unless the reviewing court
cannot find substantial evidence in the record to support the Commissioner’s decision or
finds that the Commissioner made an error of law.” Leggett v. Chater, 67 F.3d 558, 564 (5th
Cir. 1995) (footnotes omitted).
“The court may not reweigh the evidence or try the issues de novo or substitute its
judgment for that of the [Commissioner].” Kane v. Heckler, 731 F.2d 1216, 1219 (5th Cir.
1984) (citations omitted). “If the Commissioner’s findings are supported by substantial
evidence, then the findings are conclusive and the Commissioner’s decision must be
affirmed.” Martinez, 64 F.3d at 173. “Substantial evidence is ‘such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.’” Greenspan v. Shalala,
38 F.3d 232, 236 (5th Cir. 1994) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).
“It is more than a mere scintilla, and less than a preponderance.” Spellman v. Shalala, 1 F.3d
357, 360 (5th Cir. 1993) (citing Moore v. Sullivan, 919 F.2d 901, 904 (5th Cir. 1990) (per
curiam)). “To make a finding of ‘no substantial evidence,’ [the court] must conclude that
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there is a ‘conspicuous absence of credible choices’ or ‘no contrary medical evidence.’”
Dellolio v. Heckler, 705 F.2d 123, 125 (5th Cir. 1983) (citation omitted). Even if the court
should determine that the evidence preponderates in the claimant’s favor, the court must still
affirm the Commissioner’s findings if there is substantial evidence to support these findings.
See Carry v. Heckler, 750 F.2d 479, 482 (5th Cir. 1985). The resolution of conflicting
evidence is for the Commissioner rather than for the court. See Patton v. Schweiker, 697
F.2d 590, 592 (5th Cir. 1983) (per curiam).
B
For purposes of social security determinations, “disability” means 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 has lasted or can be
expected to last for a continuous period of not less than 12 months.”
42 U.S.C.
§ 423(d)(1)(A) (2006). In determining whether an applicant is disabled, the ALJ follows a
five-step sequential analysis. See, e.g., Perez v. Barnhart, 415 F.3d 457, 461 (5th Cir. 2005).
If the ALJ finds that the claimant is disabled or is not disabled at any step in the analysis, the
analysis is terminated. Id. Under the five-step sequential inquiry the Commissioner
considers whether (1) the claimant is presently engaged in substantial gainful activity, (2)
the claimant’s impairment is severe, (3) the claimant’s impairment meets or equals an
impairment listed in 20 C.F.R. § 404.1520, Subpart P, Appendix 1, (4) the impairment
prevents the claimant from doing past relevant work, and (5) the claimant cannot presently
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perform relevant work that exists in significant numbers in the national economy. See, e.g.,
Leggett, 67 F.3d at 563-64 n.2; Martinez, 64 F.3d at 173-74; 20 C.F.R. § 404.1520(a)(4)
(2011). “The burden of proof is on the claimant for the first four steps, but shifts to the
[Commissioner] at step five.” Bowling v. Shalala, 36 F.3d 431, 435 (5th Cir. 1994) (per
curiam) (citing Anderson v. Sullivan, 887 F.2d 630, 632-33 (5th Cir. 1989) (per curiam)).
When determining the propriety of a decision of “not disabled,” this court’s function
is to ascertain whether the record considered as a whole contains substantial evidence that
supports the final decision of the Commissioner, as trier of fact. The court weighs four
elements of proof to decide if there is substantial evidence of disability: (1) objective medical
facts; (2) diagnoses and opinions of treating and examining physicians; (3) the claimant’s
subjective evidence of pain and disability; and (4) age, education, and work history.
Martinez, 64 F.3d at 174 (citing Wren v. Sullivan, 925 F.2d 123, 126 (5th Cir. 1991) (per
curiam)). “The ALJ has a duty to develop the facts fully and fairly relating to an applicant’s
claim for disability benefits.” Ripley, 67 F.3d at 557. “If the ALJ does not satisfy [this]
duty, [the] decision is not substantially justified.” Id. Reversal of the ALJ’s decision is
appropriate, however, “only if the applicant shows that he was prejudiced.” Id. The court
will not overturn a procedurally imperfect administrative ruling unless the substantive rights
of a party have been prejudiced. See Smith v. Chater, 962 F. Supp. 980, 984 (N.D. Tex.
1997) (Fitzwater, J.).
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III
McDaniel contends that the ALJ’s determination of his RFC is not based on
substantial evidence because she failed to consider medical evidence of a second aneurysm
located in his right common iliac artery as well as medical evidence of additional
atherosclerotic disease in his left common iliac artery and both his left and right internal iliac
arteries.
A
The ALJ requested at the conclusion of McDaniel’s hearing that he provide his earlier
health records, including those that documented the initial diagnosis of his aneurysm. She
stated that she would be unable to render a favorable decision if McDaniel is “asymptomatic
and there’s no findings [related to the aneurysm].” R. 82. The only medical record dated
prior to March 31, 2008 that McDaniel produced from the alleged period of disability is a
December 21, 2007 report of an abdominal CT scan from Presbyterian Hospital in
Albuquerque, New Mexico (“Presbyterian Hospital”). The report notes the presence of one
aneurysm in McDaniel’s lower abdominal aorta and another in his right iliac artery. But the
report does not indicate any limitations or required follow-up. Nothing in the report suggests
that the two aneurysms would limit his ability to work.
An October 31, 2009 report from Parkland Health and Hospital System (“Parkland”)
identifies atherosclerotic disease with distal abdominal aortic aneurysm with interval
increase in size since prior study. The report also identifies aneurysmal dilation of the right
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common iliac artery. This report, from an ultrasound performed more than 1½ years after
his March 31, 2008 date last insured, likewise does not indicate any limitations on his ability
to work.
McDaniel also submitted a December 7, 2009 medical report from Parkland, which
the ALJ quoted in her decision. This report, from a CT angiogram, notes the presence of the
abdominal aortic aneurysm, an aneurysmal dilation of the right common iliac artery,
marginal aneurysmal dilation of the left common iliac artery, and 40-45% narrowing in the
left and right internal iliac arteries. But like the report from Presbyterian Hospital and the
prior report from Parkland, this report does not indicate any specific limitations on
McDaniel’s ability to work.
McDaniel also submitted a Medical Release/Physician’s Statement from Lynne Kirk,
M.D. (“Dr. Kirk”), in which she concluded on January 14, 2010 that McDaniel can work full
time for 40 hours each week. Dr. Kirk also opined that McDaniel could sit, stand, and walk
for 8 of 8 hours per day; climb 4 of 8 hours per day; kneel/squat, bend/stoop, push/pull, and
lift/carry for 2 of 8 hours per day. She noted that McDaniel cannot lift or carry objects
weighing more than 10 pounds for more than 2 hours per day. The “primary disabling
diagnosis” that she noted was McDaniel’s abdominal aortic aneurysm. Id. at 642. Dr. Kirk
nowhere mentioned any limitation as a result of McDaniel’s right common iliac artery
aneurysm or as a result of atherosclerotic disease in his left common iliac artery and his left
and right internal iliac arteries.
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The ALJ asked McDaniel during the hearing what limitations he experienced from
his aortic aneurysm. He responded that he had been told to limit his “exertional labor” and
“psychological stress,” but that he had only “chose[n]” to undertake these limitations for
about the past year. Id. at 77-78. McDaniel explained that his aneurysm had been
discovered in 2006, that he had been monitored since then, and that, during the past eight
months, his aneurysm had enlarged to the point that his doctors had begun to discuss the
possibility of “stints or a bypass operation.” Id. at 78-79. He conceded, however, that he
experienced no symptoms related to the aneurysm. Id. at 82.
Based on the medical evidence and McDaniel’s hearing testimony, the court
concludes that the ALJ’s RFC determination for the period May 25, 2007 through March 31,
2008 is supported by substantial evidence. The medical reports from Presbyterian Hospital
do not, as McDaniel suggests, establish any limitation on his ability to lift light or possibly
medium weight or otherwise restrict his ability to work. Even assuming the findings in his
2009 Parkland medical records can be extrapolated backward to the pre-March 31, 2008 time
period, these records, as the ALJ found, do not suggest any limitation on McDaniel’s ability
to lift weight or perform a limited range of light work. Even if the court assumes arguendo
that McDaniel established at his hearing that his atherosclerotic disease and various
aneurysms currently limited his ability to engage in “exertional labor” or jobs with
“psychological stress,” id. at 77-78, McDaniel did not adduce evidence that these limitations
dated back more than one year prior to the hearing.
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Accordingly, the court holds that substantial evidence supports the ALJ’s findings
regarding McDaniel’s RFC, including her finding, as applied to the May 25, 2007 to March
31, 2008 time period, that McDaniel “has no real functional limitations shown related to the
aneurysm that would prevent light or possibl[y] even medium weights.” Id. at 23.
B
McDaniel’s contention that the ALJ failed to consider the results of a December 21,
2007 abdominal CT examination at Presbyterian Hospital, an October 31, 2009 ultrasound
examination of his abdominal aorta at Parkland, and a December 7, 2009 CT angiogram of
his abdomen and pelvis at Parkland fails because McDaniel has not pointed to any indication
that the ALJ did not consider all of the medical evidence in the record.
The ALJ stated in her opinion that she carefully considered “all of the evidence,” R.
18, and she noted that her RFC determination was made “[a]fter careful consideration of the
entire record,” id. at 22 (emphasis added). The ALJ quoted language from the Presbyterian
Hospital medical records and cited generally to the reports from “vascular at Parkland.” Id.
at 23. McDaniel has not shown that, despite the contents of the ALJ’s decision, the ALJ did
not, in fact, consider all of the evidence in the record.
That the ALJ only quoted certain portions of McDaniel’s December 7, 2009 medical
report from Parkland and did not address the portion of the Presbyterian Hospital records
that noted McDaniel’s additional aneurysm does not establish that the ALJ failed to consider
this evidence. As the court has previously explained, the ALJ is not required to provide “a
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written evaluation of every piece of testimony and evidence submitted.” Nalls v. Astrue,
2008 WL 5136942, at *6 (N.D. Tex. Dec. 8, 2008) (Fitzwater, C.J.) (quoting Zblewski v.
Schweiker, 732 F.2d 75, 79 (7th Cir. 1984)). Even in cases “in which considerable evidence
is presented to counter the agency’s position,” courts require only “a minimal level of
articulation of the ALJ’s assessment of the evidence.” Id. (quoting Zblewski, 732 F.2d at
79). Here, McDaniel has failed to present any evidence that the right common iliac artery
aneurysm or the atherosclerotic disease in his left common iliac artery and both his left and
right internal iliac arteries had any impact on his ability to work. Accordingly, the court
concludes that the ALJ’s written evaluation of the evidence is sufficient and that McDaniel
has failed to establish that, in reaching her RFC determination, the ALJ failed to consider the
evidence on which McDaniel relies.
C
McDaniel posits in his reply brief that the ALJ was required to obtain expert medical
testimony in order to “develop the facts fully and fairly.” P. Reply 3 (quoting Ripley, 67
F.3d at 557); see also id. at 7 (arguing procedural due process requires that Commissioner’s
decision be reversed and remanded with instructions to assign case to new ALJ to hold
hearing to obtain medical testimony on the real functional limitation imposed by his
atherosclerotic disease before March 31, 2008). But in Ripley (the case on which McDaniel
relies) the panel explained that, although the ALJ should request a medical source statement
describing the types of work that the applicant is still capable of performing, “[t]he absence
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of such a statement . . . does not, in itself, make the record incomplete.” Ripley, 67 F.3d at
557. The panel also held that reversal for the ALJ’s failure to fully and fairly develop the
record is only appropriate “if the applicant shows that he was prejudiced.” Id. “Prejudice
can be established by showing that additional evidence would have been produced if the ALJ
had fully developed the record, and that the additional evidence might have led to a different
decision.” Id. at 557 n.22 (citing Kane, 731 F.2d at 1120). In the present case, however, the
record already includes medical evidence of McDaniel’s alleged disabilities, including Dr.
Kirk’s evaluation of his ability to work. Moreover, as explained above, McDaniel’s own
hearing testimony supports the ALJ’s RFC determination. McDaniel has failed to
demonstrate that additional evidence or expert testimony would have led the ALJ to reach
a different RFC determination.
IV
McDaniel posits that his only argument on appeal is that the Commissioner’s decision
was not based on substantial evidence because the ALJ failed to consider certain medical
evidence in connection with her RFC determination. In his brief, however, he also appears
to challenge the ALJ’s finding that McDaniel’s “statements concerning the intensity,
persistence and limiting effects of [the alleged] symptoms are not credible to the extent they
are inconsistent with the [RFC] assessment.” R. 22. Although McDaniel generally
challenges this statement and specifically challenges the ALJ’s conclusion that “the claimant
has no real functional limitations shown related to the aneurysm that would prevent light or
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possible even medium weights,” id. at 23, he has failed to point to any statement that he
made regarding the functional limitations caused by his aneurysm or atherosclerotic disease
that the ALJ found not to be credible.3 As discussed above, when questioned about the
limiting effect of his aortic aneurysm—the only aneurysm he identified during the
hearing—McDaniel did not provide the ALJ any evidence or testimony that this aneurysm
or any other aneurysm or additional atherosclerotic disease limited his ability to work during
the May 25, 2007 to March 31, 2008 time period. See id. at 77-79, 82.
Considering the substantial evidence that supports the ALJ’s RFC determination, and
the absence of evidence (medical or subjective) that either the second aneurysm in
McDaniel’s right common iliac artery or the atherosclerotic disease in his left common iliac
artery and both his left and right internal iliac arteries would have limited his ability to work
during the relevant time period, the ALJ did not commit reversible error in her credibility
determination (to the extent she made one).
3
During an August 19, 2008 medical evaluation related to his May 17, 2007 workrelated arm injury, McDaniel stated that “he does not feel that he is capable of returning to
his pre-injury work but does feel that he is capable of returning to light active work lifting
up to 10 pounds.” R. 351. But as the ALJ recognized, McDaniel made this statement in
relation to his arm pain. Therefore, the statement does not establish any functional limitation
as a result of his additional aneurysm or atherosclerotic disease, and substantial evidence
supports the ALJ’s decision.
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*
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Accordingly, for the reasons explained, the Commissioner’s decision is AFFIRMED.
December 19, 2011.
_________________________________
SIDNEY A. FITZWATER
CHIEF JUDGE
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