Wittneben v. Berryhill

Filing 21

MEMORANDUM AND RECOMMENDATION entered. The Court RECOMMENDS that Plaintiff, Kenneth Wittneben's Motion for Summary Judgment (Dkt. 15) be GRANTED; Defendant's Cross Motion for Summary Judgment (Dkt. 17) be DENIED; and the decision of the Adm inistrative Law Judge (ALJ) be REVERSED and REMANDED. On remand, the ALJ should order a consultative neuropsychological evaluation and consider the full record. Objections to M&R due by 3/26/2019. (Signed by Magistrate Judge Andrew M Edison) Parties notified. (wbostic, 4)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
KENNETH F. WITTNEBEN
Plaintiff.
VS.
NANCY A. BERRYHILL, ACTING
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION
Defendant.

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March 12, 2019
David J. Bradley, Clerk

CIVIL ACTION NO. 3:18–CV–00174

MEMORANDUM AND RECOMMENDATION
Plaintiff Kenneth F. Wittneben (“Wittneben”) seeks judicial review of an
administrative decision denying his disability insurance benefits under Title II of the Social
Security Act (the “Act”), 42 U.S.C. § 401 et seq.
All dispositive pretrial motions in this case have been referred to this Court for
report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). Dkt. 11. Before the
Court are competing motions for summary judgment filed by Wittneben and Defendant
Nancy A. Berryhill, the Acting Commissioner of the Social Security Administration (the
“Commissioner”). Dkts. 15 and 17. Having considered the motions, responsive briefing,
record, and applicable law, the Court RECOMMENDS that Plaintiff, Kenneth Wittneben’s
Motion for Summary Judgment (Dkt. 15) be GRANTED; Defendant’s Cross Motion for
Summary Judgment (Dkt. 17) be DENIED; and the decision of the Administrative Law
Judge (“ALJ”) be REVERSED and REMANDED.

BACKGROUND
Wittneben filed a claim for social security disability benefits under Title II of the
Act alleging disability as of September 1, 2010. Wittneben’s application was initially
denied and denied again upon reconsideration. Subsequently, an ALJ held a hearing and
found Wittneben was not disabled. Wittneben filed an appeal with the Appeals Council.
The Appeals Council denied review, making the ALJ’s decision final. This appeal
followed.
APPLICABLE LAW
Under the Act, individuals who have contributed to the program and have a physical
or mental disability may apply for disability insurance benefits. See 42 U.S.C. § 423. The
Commissioner’s decision to deny social security benefits is reviewed by the federal courts
to determine whether (1) the Commissioner applied the proper legal standard, and (2) the
Commissioner’s factual findings are supported by substantial evidence. See Garcia v.
Berryhill, 800 F.3d 700, 704 (5th Cir. 2018). “To be substantial, evidence must be relevant
and sufficient for a reasonable mind to accept as adequate to support a conclusion; it must
be more than a scintilla but it need not be a preponderance.” Fraga v. Bowen, 810 F.2d
1296, 1302 (5th Cir. 1987) (citation omitted). “If the Commissioner’s findings are
supported by substantial evidence, they must be affirmed.” Newton v. Apfel, 209 F.3d 448,
455 (5th Cir. 2000). “A finding of no substantial evidence is appropriate only if no credible
evidentiary choices or medical findings support the decision.” Boyd v. Apfel, 239 F.3d 698,
704 (5th Cir. 2001) (quoting Harris v. Apfel, 209 F.3d 413, 417 (5th Cir. 2000)).
“Procedural perfection in administrative proceedings, however, is not required.” Jones v.

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Colvin, 638 F. App’x 300, 303 (5th Cir. 2016) (citing Mays v. Bowen, 837 F.2d 1362, 1364
(5th Cir.1988)) (internal quotation marks omitted).
“[A] claimant is disabled only if she is incapable of engaging in any substantial
gainful activity.” Anthony v. Sullivan, 954 F.2d 289, 293 (5th Cir. 1992) (internal quotation
marks, emphasis, and citation omitted). To determine if a claimant is disabled, the ALJ
uses a sequential, five-step approach:
(1) whether the claimant is presently performing substantial gainful activity;
(2) whether the claimant has a severe impairment; (3) whether the
impairment meets or equals a listed impairment; (4) whether the impairment
prevents the claimant from doing past relevant work; and (5) whether the
impairment prevents the claimant from performing any other substantial
gainful activity.
Salmond v. Berryhill, 892 F.3d 812, 817 (5th Cir. 2018) (quoting Kneeland v. Berryhill,
850 F.3d 749, 753 (5th Cir. 2017)).
“The claimant bears the burden of proof on the first four steps, but the
Commissioner bears the burden on the fifth step.” Salmond, 892 F.3d at 817 (citation
omitted). “Before reaching step four, the Commissioner assesses the claimant’s residual
functional capacity (‘RFC’). The claimant’s RFC assessment is a determination of the
most the claimant can still do despite his or her physical and mental limitations and is based
on all relevant evidence in the claimant’s record. The RFC is used in both step four and
step five to determine whether the claimant is able to do her past work or other available
work.” Kneeland, 850 F.3d at 754 (internal quotation marks and citations omitted).
The Commissioner’s decision must stand or fall with the reasons stated in the ALJ’s
final decision. See Newton, 209 F.3d at 455. Post hoc rationalizations for an agency
decision are not to be considered by a reviewing court. See SEC v. Chenery Corp., 332
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U.S. 194, 196 (1947). “The reviewing court may not reweigh the evidence, try the
questions de novo, or substitute its judgment for the Commissioner’s, even if it believes
the evidence weighs against the Commissioner’s decision. Conflicts in the evidence are
for the Commissioner, not the courts, to resolve.” Pennington v. Comm’r of Soc. Sec.
Admin., No. 3:16-CV-230, 2017 WL 4351756, at *1 (S.D. Tex. Sept. 29, 2017) (citing
Masterson v. Barnhart, 309 F.3d 267, 272 (5th Cir. 2002)).
THE ALJ’S DECISION
The ALJ found at step one that Wittneben had not engaged in substantial gainful
activity since September 1, 2010.
The ALJ found at step two that Wittneben had the following severe impairment:
obesity.
At step three, the ALJ found that this impairment did not meet any of the Social
Security Administration’s listed impairments.
Prior to consideration of step four, the ALJ assessed Wittneben’s RFC, as follows:
After careful consideration of the entire record, the undersigned finds that,
through the date last insured, the claimant had the residual functional
capacity to perform the full range of medium work as defined in 20 CFR
404.1567(c).
Dkt. 9-3 at 18. At step four, based on this RFC, the ALJ found that Wittneben is unable to
perform any past relevant work. At step five, the ALJ considered Wittneben’s age,
education, work experience, and RFC in conjunction with the Medical Vocational
Guidelines and the testimony of a vocational expert to determine if there was any other
work he could perform. At the time of the ALJ’s hearing, Wittneben was 60 years old,
defined as an individual of advanced age, with at least a high school education. The ALJ
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determined that transferability of job skills was not material in the determination of
disability. The ALJ concluded that “[t]he claimant was not under a disability, as defined
in the Social Security Act, at any time from September 1, 2010, the alleged onset date,
through December 31, 2015, the date last insured (20 CFR 404.1520(g)).” Id. at 22.
DISCUSSION
This appeal raises two issues: (1) whether the ALJ erred at step 2 when he found
Wittneben’s dementia and Alzheimer’s disease diagnoses were not medically determinable
impairments; and (2) whether the ALJ failed to fulfill his duty to develop the record when
he did not order neuropsychological testing despite the recommendation of two medical
experts. The Court will address each issue in turn.
A.

ALJ’S STEP TWO ANALYSIS
1.

Medically Determinable Mental Impairment

Wittneben argues that the ALJ erred at step two “in finding that dementia and/or
Alzheimer’s disease are not ‘medically determinable impairments’ based on a purposed
‘lack of objective evidence’ in the record.” Dkt. 16 at 5. The Commissioner responds that
“[s]ubstantial evidence demonstrates that Plaintiff’s dementia and Alzheimer’s disease
were not medically determinable impairments, even if Plaintiff did have medically
determinable mental impairments, they were not severe.” Dkt. 17-1 at 6.
Legal Standard: The concept of disability is defined in the Social Security Act, as
the “inability to engage in substantial gainful activity by reason of any medically
determinable physical or mental impairment which . . . has lasted . . . for a continuous
period of not less than 12 months.” Hames v. Heckler, 707 F.2d 162, 164 (5th Cir. 1983)
(citing 42 U.S.C. § 416(i)(1)). “A medically determinable ‘physical or mental impairment’
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is an impairment that results from anatomical, physiological, or psychological
abnormalities which are demonstrable by medically acceptable clinical and laboratory
diagnostic techniques.” Maharajh v. Barnhart, 424 F. Supp. 2d 915, 924 (S.D. Tex. 2006)
(citing Hames, 707 F.2d at 165 and 42 U.S.C. § 423(d)(3)). “[A]n individual is under a
disability, only if his impairments are of such severity that he is not only unable to do his
previous work but cannot, considering his age, education, and work experience, engage in
any other kind of substantial gainful work which exists in the national economy.”
Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994) (quoting 42 U.S.C. § 423(d)(2)(A))
(internal quotation marks omitted).
“Medically acceptable evidence includes observations made by the physician during
physical examinations and is not limited to the narrow strictures of laboratory findings or
test results.” Cruz v. Colvin, No. EP-12-CV-00179-ATB, 2013 WL 3338591, at *6 (W.D.
Tex. July 1, 2013) (citing Loza v. Apfel, 219 F.3d 378, 393 (5th Cir. 2000)). When
evaluating the severity of a claimant’s mental impairment, the ALJ must specify the
symptoms, signs, and laboratory findings that substantiate the presence of each
impairment. See Cruz, 2013 WL 3338591, at *6 (citing Boyd, 239 F.3d at 705).
ALJ’s Determination:

In his opinion, the ALJ first addressed Wittneben’s

depression/dysthymia and found it was a medically determinable impairment but “caused
no more than ‘mild’ limitation in any of the functional areas [and is] nonsevere.” Dkt. 9-3
at 16. Wittneben does not challenge the ALJ’s determination for this particular mental
impairment. Next, the ALJ discussed Wittneben’s other mental impairments. The ALJ
concluded:

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After a careful review of the evidence of record, the claimant’s dementia and
Alzheimer’s disease are not medically determinable impairments. Although
the claimant was diagnosed with these impairments, they do not result from
anatomical, physiological, or psychological abnormalities, which are
demonstrable by medically acceptable clinical and laboratory diagnostic
techniques. Therefore, the undersigned finds dementia and Alzheimer’s
disease are not medically determinable impairments due to a lack of objective
evidence. A medically determinable impairment may not be established
solely on the basis of symptoms alone, or on the claimant’s allegations
regarding symptomatology (20 CFR 404.1508 and 416.908, and SSR 96-4p).
There must be evidence from an acceptable medical source in order to
establish the existence of a medically determinable impairment.
Dkt. 9-3 at 17. Because the ALJ determined that Wittneben’s dementia and Alzheimer’s
disease were not medically determinable impairments, the ALJ did not evaluate the severity
those particular mental impairments.
The ALJ Erred in Finding That Wittneben’s Dementia and Alzheimer’s
Disease Are Not Medically Determinable Impairments: Substantial evidence does not
support the ALJ’s determination that Wittneben’s dementia and Alzheimer’s disease are
not medically determinable impairments. The ALJ claims that although Wittneben was
diagnosed with both dementia and Alzheimer’s disease, “they do not result from
anatomical, physiological, or psychological abnormalities, which are demonstrable by
medically acceptable clinical and laboratory diagnostic techniques.” Dkt. 9-3 at 17. In
support of this assertion, the ALJ relies solely on the testimony of a single consultative
examiner, Ashock Khushalani, M.D. (“Dr. Khushalani”). At the hearing, Dr. Khushalani
gave the following opinion regarding Wittneben’s dementia:
This is more an observational diagnosis. There is really no objective. Before
you diagnose somebody with dementia, you have to have some MRI of the
brain, x-ray to show any kind of impact on the brain, if there’s any shrinkage.
There is no neuropsychological testing. There’s not even what’s known as a

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mini-mental status or other type. There is one slump score of 19 and that
says dementia. But there are various other parameters.
Id. at 54. The ALJ categorically states: “[t]he undersigned notes the objective medical
evidence support[s] the testimony of Dr. Khushalani.” Id. at 17. The ALJ and Dr.
Khushalani are both mistaken.
A review of the objective medical evidence indicates that not only was Wittneben
diagnosed with mild cognitive impairment, but a brain MRI was performed and a minimental status exam was administered in April 2014 at the Houston Neurological Institute.
The April 2014 brain MRI appears at least twice in the medical record. First, Wittneben
submitted the actual brain MRI results. See Dkt. 9-16 at 70. Second, in a progress note
from Robert Fayle, M.D. (“Dr. Fayle), he stated that he “[d]iscussed the psychometrics and
the MRI” with Wittneben on May 16, 2014. Dkt. 9-11 at 41. Although these medical
records were available to Dr. Khushalani and the ALJ, it is clear from the hearing transcript
and the ALJ’s opinion that neither Dr. Khushalani nor the ALJ reviewed this objective
medical evidence.
Moreover, the ALJ only briefly discussed Wittneben’s prescription for Aricept.
According to testifying medical expert Philip Sidney Bentlif, M.D. (“Dr. Bentlif”), Aricept
is a medication that is “used in the early stages of [Alzheimer’s disease] in hopes of
stopping progression of the process.” Dkt. 9-3 at 52. Here, the ALJ states “the claimant
had only mild cognitive impairment with improved memory subsequent to starting Aricept
5 mg (Exhibit 5F, page 2).” Dkt. 9-3 at 17. After diagnosing Wittneben with mild
cognitive impairment, Dr. Fayle prescribed Aricept. While it is true that the medical record
indicates that Wittneben reported some memory improvements after taking Aricept, this
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does not mean that Wittneben does not suffer from Alzheimer’s disease or dementia.
Simply because Wittneben was responding to the medication does not necessarily mean
his memory loss was controlled. In fact, in a January 2015 progress note, Dr. Fayle stated
that “[d]espite the Aricept 10 mg/day, the memory has continued to get worse according to
the patient. He is trying to get a medical disability, which is appropriate. We have
discussed [his] expectations with the Aricept.” Dkt. 9-14 at 65. The medical record
indicates that not only was Wittneben’s prescription for Aricept increased from 5 mg per
day to 10 mg per day, but that Wittneben continued to experience memory loss.
The ALJ did not find that Wittneben’s allegations of dementia and Alzheimer’s
disease were medically determinable impairments. It is clear from a review of the record
that Wittneben exhibited signs, symptoms, and objective reports of memory loss that can
establish the existence of a medically determinable impairment. “While an ALJ is not
required to cite all of the evidence in the record he considered, his decision will only be
upheld if it is supported by substantial evidence.” Cruz, 2013 WL 3338591, at *9 (citing
Brunson v. Astrue, 387 F. App’x 459, 461 (5th Cir. 2010)). Furthermore, an “ALJ must
consider all the record evidence and cannot ‘pick and choose’ only the evidence that
supports his position.” Loza, 219 F.3d at 393. Here, the ALJ disregarded critical objective
medical evidence while relying on the testimony of Dr. Khushalani, who also disregarded
the same objective medical evidence. This casts serious doubt on the ALJ’s review of the
record. As such, the Court holds that the ALJ’s finding that Wittneben’s dementia and

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Alzheimer’s disease are not medically determinable impairments is not supported by
substantial evidence and that the ALJ’s finding was in error.1
B.

DUTY TO FULLY AND FAIRLY DEVELOP THE RECORD
Next, Wittneben contends that the ALJ should have ordered a neuropsychological

evaluation. He argues that the ALJ failed to fully and fairly develop the record because
“two testifying medical experts recommended that Plaintiff undergo a neuropsychological
evaluation to determine if he does, in fact, have dementia.” Dkt. 16 at 13. Wittneben
argues that he was prejudiced by this failure to consult another medical expert. In response,
the Commissioner asserts that the testifying medical experts’ opinions “support the ALJ’s
finding that Plaintiff’s dementia and Alzheimer’s disease were not medically determinable
impairments.” Dkt. 17-1 at 14.
Legal Standard: “To determine whether the ALJ fully and fairly developed the
record, we ask whether the record contained sufficient evidence for him to make an
informed decision.” Hernandez v. Astrue, 269 F. App’x 511, 515 (5th Cir. 2008) (citing
Brock v. Chater, 84 F.3d 726, 728 (5th Cir. 1996)). “So long as such evidence exists, the
ALJ need not have supplemented the record with additional evidence.” Id. (citing 20
C.F.R. §§ 404.1516, 416.916; Anderson v. Sullivan, 887 F.2d 630, 634 (5th Cir.1989)).
While the claimant bears the burden of proving his disability by establishing a physical or

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In her motion, the Commissioner argues that “[e]ven if the ALJ erred here by stating that
dementia and Alzheimer’s disease were not medically determinable impairments (Tr. 16), the ALJ
discussed substantial objective evidence, in detail, supporting his finding that Plaintiff did not have
a severe mental impairment (Tr. 15).” Dkt. 17-1 at 7. The Court declines to consider this post hoc
rationalization. See SEC v. Chenery Corp., 332 U.S. at 196. As explained above, the ALJ never
evaluated the severity of Wittneben’s dementia and Alzheimer’s conditions. The Court will not
do so in the first instance on appeal.

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mental impairment, the ALJ may order a consultative examination to develop a full and
fair record. See Jones v. Bowen, 829 F.2d 524, 526 (5th Cir. 1987). “The decision to order
a consultative examination is within the ALJ’s discretion, but the ALJ must order a
consultative evaluation when such an evaluation is necessary to enable the ALJ to make
the determination.” Cruz, 2013 WL 3338591, at *9. “A consultative evaluation becomes
‘necessary’ only when the claimant presents evidence sufficient to raise a suspicion
concerning a non-exertional impairment.” Brock, 84 F.3d at 728 (citation omitted).
The ALJ Must Order a Consultative Examination: While the Court has already
determined that the medical records contain enough information to indicate that
Wittneben’s dementia and Alzheimer’s disease are medically determinable impairments,
the ALJ made no determination about the severity of these impairments. At the hearing
before the ALJ, both testifying medical experts recommended that Wittneben undergo a
neuropsychological evaluation. In his opinion, the ALJ notes that Wittneben’s attorney
requested a consultative neuropsychiatric evaluation but decided “there is no reason to
delay this claim for any further evaluation” and denied the request. Dkt. 9-3 at 11. The
Court finds that an evaluation is necessary to enable the ALJ to make the determination on
the severity of Wittneben’s dementia and Alzheimer’s disease. See Cruz, 2013 WL
3338591, at *9.

Accordingly, on remand, the ALJ should order a consultative

neuropsychological evaluation to fully and fairly develop the record and clear up any
ambiguities in the record.
CONCLUSION AND RECOMMENDATION
For the reasons stated above, the Court RECOMMENDS that Plaintiff, Kenneth
Wittneben’s Motion for Summary Judgment (Dkt. 15) be GRANTED; Defendant’s Cross
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Motion for Summary Judgment (Dkt. 17) be DENIED; and the decision of the
Administrative Law Judge (“ALJ”) be REVERSED and REMANDED. On remand, the
ALJ should order a consultative neuropsychological evaluation and consider the full
record.
The Clerk shall provide copies of this Memorandum and Recommendation to the
respective parties who have fourteen days from the receipt thereof to file written objections
pursuant to Federal Rule of Civil Procedure 72(b) and General Order 2002–13. Failure to
file written objections within the time period mentioned shall bar an aggrieved party from
attacking the factual findings and legal conclusions on appeal.
SIGNED at Galveston, Texas, this _____ day of March, 2019.

______________________________________
ANDREW M. EDISON
UNITED STATES MAGISTRATE JUDGE

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