Stevenson v. Astrue

Filing 16

OPINION AND ORDER granting 11 Pltf's Motion for Summary Judgment; denying 13 Dft's Motion for Summary Judgment and this action is REMANDED to the Social Security Administration pursuant to Sentence 4 of 42 USC § 405(g) for further proceedings consistent wit the determination made herein..(Signed by Magistrate Judge John R Froeschner) Parties notified.(sanderson, 3)

United States District Court
Southern District of Texas

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IN THE UNITED STATES DISTRICT COURT

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FOR THE SOUTHERN DISTRICT OF TEXAS

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Plaintiff,

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October 22, 2015
David J. Bradley, Clerk

GALVESTON DIVISION

MELISSA STEVENSON,

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ENTERED

vs.
CAROLYN W. COLVIN, Commissioner
of the Social Security Administration,
Defendant.

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CIVIL ACTION NO. G-12-259

OPINION AND ORDER
Before the Court, with the consent of the parties, is Plaintiffs Motion for Summary
Judgment (Dkt. Nos. 11, 12) and Defendant's cross Motion for Summary Judgment. (Dkt. No.
13). Having reviewed the submissions of the parties, the administrative record, and the applicable
law, the Court concludes that Defendant's Motion for Summary Judgment is denied, that
Plaintiffs Motion for Summary Judgment is granted, and that this matter is remanded to the
Commissioner of the Social Security Administration for further proceedings.'
I. BACKGROUND
On May 3, 2010, Plaintiff Melissa Stevenson (Stevenson) submitted an application for
disability insurance benefits (DIB) under Title II of the Social Security Act. In her application,

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The Court pauses to note that after the briefing in this case was completed, Plaintiffs counsel
informed the Court that the Social Security Administration (SSA) found Stevenson disabled by letter dated
May 17,2013. (Dkt. No. 15). Plaintiffs counsel further informed that Stevenson was found disabled as
of April 21, 2011 -the date of the ALJ's decision which is under review herein. However, given the
pendency of this action, the Program Operations Manual Systems (POMS) precluded the agency from
"invading the time period adjudicated by the ALJ," consequently, the earliest date which could be
established in the subsequent claim was April 22, 2011. (Dkt. No. 15).

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Stevenson alleged that her disability began on June 12, 2010, and was due to Type 1 diabetes,

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epilepsy and seizures. (Transcript (Tr.) 17, 61, 111, 129). After Stevenson's application for DIB

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was denied initially and on reconsideration, she then requested a hearing before an Administrative

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Law Judge (ALJ).

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In March 2011, Stevenson, accompanied by her husband, personally appeared and testified

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her ruling. (Tr. 17-23). In the decision, the AU determined that Stevenson met the "insured

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status requirements of the Social Security Act through December 31, 2014" and that she had "not

at a hearing that was held by ALJ Susan Soddy. (Tr. 28-60). On April 21, 2011, the ALJ issued

engaged in substantial gainful activity since January 21, 2010, the alleged onset date." (Tr. 19).
At Step 2, the ALJ found that Stevenson had a severe impairment, which was "seizure disorder."
(Tr. 19). Proceeding on, the ALJ found at Step 3 that Stevenson did not have an impairment or

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combination of impairments that met or medically equaled the severity of one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 20). The ALJ then determined

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that Stevenson had "the residual functional capacity to perform a full range of work at all

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exertionallevels except she cannot work around unprotected heights and/or dangerous/moving

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machinery. She cannot climb ropes, ladders or scaffolds. She cannot work at any job that
requires driving." (Tr. 20). At Step 4, the ALJ then determined that Stevenson was "capable of
performing past relevant work as a loan officer and a mortgage company underwriter" and that

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"[t]his work does not require the performance of work-related activities precluded by [her]

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residual functional capacity." (Tr. 22). The ALJ, therefore, concluded that Stevenson had "not

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been under a disability, as defined in the Social Security Act, from January 21, 2010, through the
date of this decision." (Tr. 23).

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Stevenson appealed the adverse decision to the Appeals Council and submitted additional
documents for consideration. The Appeals Council, however, denied Stevenson's request for
review on July 13, 2012.

As such, the ALJ's decision being the final decision of the

Commissioner of Social Security (Commissioner). (Tr. 1-5).
Pursuant to 42 U.S.C. § 405(g}, Stevenson filed this action seeking judicial review of the
final decision of the Commissioner denying her claim for DIB. (Dkt. No. 1). Stevenson's
challenge to the administrative decision concerns the ALJ's failure to properly consider the
severity of her conditions (i.e., diabetes and hypertension). (Dkt. No. 12). Stevenson also
challenges the ALJ's determination of her RFC on the following grounds: (1) the ALJ failed to
properly consider and weigh the opinion of her treating doctor that the causes of her fatigue and
sedation effects were the result of her impairments and the medications she was prescribed; (2)
the ALJ failed to consider the side effects of her medications; and (3) the ALJ's failure to consider
the side effects of her medications resulted in the ALJ finding Stevenson's subjective complaints
not fully credible. (/d.). The Commissioner, in contrast, contends that substantial evidence exists
in the record to support the ALJ's decision, that the decision comports with applicable law, that
any deficiency in the ALJ's written decision constitutes harmless error, and that the decision
should be affirmed. (Tr. 13).
II. LEGALSTANDARD
Judicial review of a denial of disability benefits "is limited to determining (1) whether
substantial evidence supports the Commissioner's decision, and (2) whether the Commissioner's
decision comports with relevant legal standards."

Jones v. Apfel, 174 F.3d 692, 693 (5 1h

Cir.1999); 42 U.S. C. § 405(g). Substantial evidence is defined as more than a scintilla, less than

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a preponderance, and as being such relevant and sufficient evidence as a reasonable mind might
accept as adequate to support a conclusion. Leggett v. Chater, 67 F.3d 558, 564 (5th Cir.1995).
In applying the substantial evidence standard, the reviewing court does not re-weigh the evidence,
retry the issues, or substitute its own judgment, but rather, its role is to scrutinize the
administrative record to determine whether substantial evidence is present. Greenspan v. Shalala,
38 F.3d 232, 236 (5th Cir. 1994); Carrier v. Sullivan, 944 F.2d 105, 109 (5th Cir.1991).

ill. DISCUSSION
The Court addresses the issues raised in this case through the framework the five-step
sequential process. 2 When determining whether substantial evidence supports the ALJ's decision,
the court weighs four factors:

(1) the objective medical facts; (2) the diagnosis and expert

opinions of treating physicians on subsidiary questions of fact; (3) the subjective evidence of pain
and disability as testified to by the claimant; and (4) the claimant's educational background, work
history and present age. See Martinez v. Chater, 64 F.3d 172, 174 (5th Cir. 1995); Wren v.
Sullivan, 925 F.2d 123, 126 (5th Cir. 1991).

A. StepTwo
At Step two of the sequential process, the ALJ must consider whether the impairments
alleged by the claimant are severe. 20 C.F.R. § 404.1520. As explained by the Fifth Circuit, 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, 1104-05 (5th Cir. 1985); see also, Sweeney v. Astrue, 2010 WL
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The Social Security Administration uses a well-established five-step process to determine whether
an individual is disabled. See 20 C.P.R. § 404.1520(a)(4). The steps must be followed sequentially and,
if at any step the Commissioner determines that the claimant is disabled or not disabled, the evaluation
ends. Id.
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6792819 at *5 (N.D.Tex.2010).
In the present case, the ALJ determined that Stevenson's seizure disorder was a "severe"
impairment, however, she determined that Stevenson's diabetes and hypertension were both
"nonsevere impairments." (Tr. 19). In her decision, the ALJ explained that she found these
conditions to be "nonsevere" because both "are controlled with medications and do not cause
functional limitations. " (Tr. 19). Stevenson challenges the ALJ' s determination that her diabetes
and hypertension were not "severe" impairments. (Dkt. No. 12 at 12-15). She argues that the

AU based her determination on erroneous assumptions (i.e., that her impairments were controlled

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with medications), which is not supported by substantial evidence in the record. (Dkt. No. 12 at
12-15, 25).
After carefully considering the record in this case, the Court concludes that Stevenson's
contention has merit. In particular, despite Stevenson's compliance with the treatment prescribed,
as well as her doctors' continuous efforts to achieve control over her diabetes (Tr. 290, 353, 360,

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568-569, 570, 571-572), the medical records show significant fluctuations in her glucose levels

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(Tr.233,244,245,252,262,269,272,290,302,305, 366,376,370,430,438,440,442-443,

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445-446, 473, 523, 530, 555, 563), which reflects that her diabetes was not, in fact, controlled
by medication. (Tr. 245, 252, 305, 427-428, 430). The medical records also reflected that one
of Stevenson's doctors- a specialist- considered her diabetes to be "brittle" 3 because, regardless
of the treatment, Stevenson continued to experience wild swings in her glucose levels. (Tr. 244,
252, 305). Furthermore, consistent with these medical findings, there was evidence before the
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While considered an outdated term, "brittle" is used to describe insulin-dependent diabetes that
is characterized by wide, unpredictable fluctuation of blood glucose values and, hence, difficult to control.
Dorland's Illustrated Medical Dictionary, at 456 (28th ed.). Brittle diabetes, while now referred to as
"labile diabetes," signifies "uncontrolled" or "unstable" type 1 diabetes. Id.

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ALJ- albeit from Stevenson herself- regarding the functional limitations her condition imposed.
For example, Stevenson testified that her uncontrolled diabetes caused her to miss work and made
her feel "out of it" and/or drowsy to the point of not being aware of what was going on around
her. (Tr. 41). She also attributed her symptoms of lethargy, dizziness and sweating with her low
blood sugars. (Tr. 36, 41).
Similarly, the medical records are replete with evidence that, despite attempts to regulate
it with different medications and/or doses, Stevenson's hypertension/hypotension remained
uncontrolled. (Tr. 44-45, 241-242, 252, 257, 305, 317). In addition, consistent with this medical
evidence, was evidence of the functional limitations posed by her condition.

For example,

Stevenson testified that due to her uncontrolled blood pressure she felt dizzy, lightheaded and she
had to sit down to avoid passing out. (Tr. 44-45). Stevenson also testified that she had fallen
several times and she attributed this to her low blood pressure. (!d.).
Because substantial evidence does not support the AU's determination at Step 2, the Court
concludes that Stevenson is entitled to summary judgment as to this point of error.

B. Residual Functional Capacity
Before proceeding on to Step 4, the ALJ was required to assess Stevenson's residual
functional capacity (RFC). 4 The term "residual functional capacity assessment" describes an
adjudicator's finding about the ability of an individual to perform work-related activities. Soc.
Sec. Ruling 96-5p (July 2, 1996). The ALJ is responsible for determining a claimant's RFC.
Ripley v. Chater, 67 F.3d 552, 557 (5 1h Cir.1995). The RFC assessment must be based upon" all

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If the impairment is severe at step 2, but does not meet or equal a listed mental impairment at step
3, then the Commissioner must conduct a residual functional capacity assessment before proceeding on to
the remaining steps. See 20 C.F.R. § 404.1520(a)(4).
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of the relevant evidence in the case record," including, but not limited to, medical history, medical
signs, and laboratory findings; the effects of treatment; and reports of daily activities, lay
evidence, recorded observations, medical source statements, and work evaluations. Soc. Sec.
Ruling 96-8p, 1996 WL 374184 (July 2, 1996) (emphasis in original); see also, Hollis v. Bowen,
837 F.2d 1378, 1386-87 (5th Cir. 1988). The ALJ is not permitted to "pick and choose" only the
evidence that supports her determination. 20 C.F .R. § 404.1545; Soc. Sec. Ruling 96-7p (July
2, 1996); Loza v. Apfel, 219 F.3d 378, 393 (5th Cir. 2000).
In the present case, the ALJ determined that Stevenson had the RFC to perform a full range
of work at all exertionallevels with the following exceptions: she cannot work around unprotected
heights and/or dangerous/moving machinery; she cannot climb ropes, ladders or scaffolds; and
she cannot work at any job that requires driving. (Tr. 20). Stevenson contends the ALJ erred
when determining her RFC because the ALJ rejected, without good cause, the opinion of her
treating physician; the ALJ failed to consider the side effects of her medications and this error,
in turn, led the AU to conclude that her subjective complaints were not entirely credible. The
Court discusses the issues in turn.

1. Opinion of Treating Physician
The law is clear that "ordinarily the opinions, diagnoses and medical evidence of a treating
physician who is familiar with the claimant's injuries, treatment, and responses should be accorded
considerable weight in determining disability. " Scott v. Heckler, 770 F. 2d 482, 485 (5th Cir .1985)
(citing Barajas v. Heckler, 738 F.2d 641, 644 (5th Cir.1984); Smith v. Schweiker, 646 F.2d 1075,
1081 (5th Cir.1981); Perez v. Schweiker, 653 F.2d 997, 1001 (5th Cir.1981); Fruge v. Harris, 631
F.2d 1244, 1246 (5th Cir.1980)). "[T]he ALJ is free to reject the opinion of any physician when

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the evidence supports a contrary conclusion," (Martinez v. Chater, 64 F.3d 172, 175-76 (5th Cir.
1995)), however, the ALJ cannot reject a medical opinion without an explanation supported by
good cause. See Loza v. Apfel, 219 F.3d 378, 395 (5th Cir.2000). In addition, the ALJ is not
permitted to simply "pick and choose" only the evidence that supports her decision. /d.
A review of the decision reflects that while the ALJ acknowledged Dr. Varner's opinion
dated December 29, 2010, she wholly rejected the doctor's opinion on the basis that "speculation
as to employability carries no valuable probative weight, and the ultimate determination of
disability is specifically reserved to the Commissioner pursuant to SSR 96-5p." (Tr. 21-22, 545).
It is, of course, true that an opinion that Stevenson was "disabled" or "unable to work" would
carry no special significance because it involves a legal conclusion reserved for the Commissioner.
20 C.F.R. § 404.1527(e); Frank v. Barnhart, 326 F.3d 618, 620 (5th Cir.2003). Problematically,
however, Dr. Varner's opinion was not so narrow. Instead, Dr. Varner, as Stevenson's treating
physician, expressed the opinion that the fatigue and sedation effects that Stevenson experienced
were due to her medications and her impairments. (Tr. 545). The ALJ did not establish "good
cause" for wholly rejecting Dr. Varner's opinion, which was consistent with the objective medical
evidence5 on the issues related to the interaction of Stevenson's medications and her impairments.

See Scott, 770 F.2d at 485. Nor did the ALJ make any pretense about applying the regulatory

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The medical records reflect that Dr. Varner diagnosed Stevenson with a complex seizure disorder
and treated her with Trileptal, initially at 150 mg. twice a day, but Dr. Varner increased the dosage to 300
mg. twice a day and, despite Stevenson taking the medication as prescribed, the dosage was then changed
to 150 mg. three times a day. (Tr. 436, 438, 441). Consistent with Stevenson's testimony, Trileptal has
known side-effects which include fatigue, dizziness, and somnolence. Additionally, Stevenson was
diagnosed with type I diabetes and, despite the insulin pump, she experienced hypoglycemia which,
consistent with Dr. Varner's opinion and Stevenson's testimony, can cause shakiness, dizziness, sweating,
confusion and difficulty with attention. Finally, while not referred to by Dr. Varner in her opinion,
Stevenson was diagnosed with labile hypertention and treated with Metoprolol which can cause, among
other side-effects, low blood pressure, fatigue, dizziness and confusion.
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factors to weigh Dr. Varner's opinion. The Court, therefore, concludes that the ALJ erred by
failing to properly consider, evaluate and weigh the medical opinion of Stevenson's treating
physician. See Fraga v. Bowen, 810 F.2d 1296, 1304 n. 8 (5th Cir.1987); Fruge, 631 F.2d at
1246.

2. Side Effects of the Medications & Credibility
An ALJ is required to consider the "type, dosage, effectiveness, and side effects of any
medication the individual takes or has taken to alleviate pain or other symptoms" in assessing the
credibility of an individual's statements. 20 C.P.R.§§ 404.1529(c)(3)(iv); SSR 96-7p; Crowley
v. Apfel, 197 F.3d 194, 199 (5th Cir.1999). In addition, the ALJ's RFC assessment "must be
based on all of the relevant evidence in the case record," including "the effects of treatment" and
the "limitations or restrictions imposed by the mechanics of treatment; e.g., frequency of
treatment, duration, disruption to routine, side effects of medication." SSR 96-8p.
There is no dispute in this case that Stevenson is required to take a large number of
medications, including Trileptal, Insulin, Gabapentin, Benicar, Metropolol and Tramadol. (Tr.
132, 169-171, 245). Fatigue, drowsiness and dizziness are listed among their common side
effects. (See Dkt. No. 11 at 18-19). The record documents that Stevenson complained of extreme
fatigue, drowsiness and dizziness on several occasions and even testified at the hearing that she
experienced these side effects and several others. (Tr. 36-37, 40-41, 43-45, 49, 241, 244, 252,
396, 424, 438, 454, 455, 468, 545, 559, 571, 569). The fact that Stevenson may not have
specifically referred to her symptoms as "medication side effects" when she complained of them

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should not negatively reflect upon her credibility. 6 Accordingly, an evaluation of medication
side-effects and any impact on Stevenson's RFC would have been appropriate in this case. 7 The
ALJ clearly committed error by failing to evaluate side effects or symptoms allegedly caused by
medication and their impact on Stevenson's RFC. See Brown v. Barnhart, 285 F.Supp.2d 919,
935 (S.D.Tex.2003); Harrison v. Colvin, No. 3:13-CV-2851-D, 2014 WL 982843 (N.D. Tex.
Mar. 12, 2014); Bassett v. Astrue, No. 4:09-CV-142-A, 2010 WL 2891149, at *13 (N.D.Tex.
June 25, 2010).
The Commissioner, while acknowledging that the ALJ erred in failing to consider the side
effects of Stevenson's medications, argues that any such error was harmless.

See Skidis v.

Comm'r of Soc. Sec. Admin., No. 3:08-CV-2181-N, 2009 WL 3199232, at *11 (N.D.Tex.
Oct.2, 2009) (explaining that "[h]armless error exists when it is inconceivable that a different
administrative conclusion would have been reached absent error. "). The Court cannot agree. The
history of Stevenson's extensive medical treatment indicates the presence of impairments and the
possibility of medication side effects that could render her disabled or at least contribute to a
disability. Loza v. Apfel, 219 F.3d 378, 397 (5 1h Cir. 2000). The lack of consideration of the
medication prescribed and taken by Stevenson, along with the evidence of her functional
impairments also demonstrates that the ALJ' s findings are not substantially supported by the

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The Court pauses to note that it is entirely unreasonable to expect that a layman such as Stevenson
should be required to determine that her symptoms are, in fact, due to "medication side effects" and report
them specifically as such. Instead, the fact that she complained of the symptoms alone is sufficient.
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The ALJ has a duty to develop the facts fully and fairly relating to an applicant's claim for
disability benefits. If the ALJ does not satisfy his duty, his decision is not substantially justified. Boyd,
239 F.3d at 708 (citing to Newton v. Apfel, 209 F.3d 448, 458 (5th Cir. 2000)).
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record when viewed as a whole. The Court, therefore, concludes that remand is warranted. 8

CONCLUSION
Considering the record as a whole, this Court concludes that proper legal standards were
not adhered to and the Commissioner's decision is not supported by substantial evidence. The
Court, therefore, concludes that the Defendant's Motion for Summary Judgment (Dkt. No. 13)
is DENIED; that Plaintiffs Motion for Summary Judgment (Dkt. Nos. 11, 12) is GRANTED;
and that this action is REMANDED to the Social Security Administration pursuant to Sentence
4 of 42 U.S.C. § 405(g), for further proceedings consistent with the determinations made herein.

DONE at Galveston, Texas, this

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day of October, 2015.

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The Court pauses to note that to the extent the AU's analysis of Stevenson's credibility hinged
on this issue, which appears to be the case, the AU's analysis was in error. Upon remand, the effect of
medication side-effects should be considered in evaluating Stevenson's credibility and RFC.
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