Hurtado v. Astrue

Filing 16

MEMORANDUM AND OPINION granting 14 Cross MOTION for Summary Judgment, and denying 13 MOTION for Summary Judgment. (Signed by Magistrate Judge Stephen Wm Smith) Parties notified. (jmarchand)

H u r t a d o v. Astrue

D o c . 16

U N IT E D STATES DISTRICT COURT S O U T H E R N DISTRICT OF TEXAS H O U S T O N DIVISION

A NGELA HURTADO, P l a in tif f , v. M ICHAEL J. ASTRUE, C OMMISSIONER OF SOCIAL SECURITY, D e f e n d a n t.

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C iv il Action H-07-3486

O p in io n on Summary Judgment T h is appeal from the denial of disability insurance benefits under the Social Security A c t is before the court on cross motions for summary judgment.1 For the reasons expressed b e lo w , the Commissioner's motion (Dkt. 14) is granted, and Hurtado's motion (Dkt. 13) is d e n ie d . B a c k gro u n d E u g e n ia Hurtado, on behalf of Angela Hurtado, applied for supplemental security in c o m e under Title XVI of the Social Security Act after Angela suffered an intra-cranial h e m o r rh a g e on August 30, 2004.2 Following the hemorrhage, Hurtado underwent emergency re m o v a l of an intracerebral hematoma and resection of the arteriovenous malformation in the

Both parties have filed 28 U.S.C. § 636(c) consents to proceed before the magistrate judge. Dkt. Nos. 9, 11. TR 74-76. Page references to the Social Security Administration's records transcript will be cited as follows: TR 1, TR 2, TR 3, et cetera. 1
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rig h t region of her brain. Thereafter, Hurtado received extensive physical therapy and had n u m e ro u s medical evaluations over the course of several years.3 Following her initial su rg e ry, Hurtado was examined by Dr. Jerome Caroselli on October 4, 2004. Dr. Caroselli c o n c lu d e d that Hurtado was "not considered to be able to hold gainful employment due to th e combination of her visual memory and psychomotor deficits." 4 On December 6, 2004, D r. Lindsay Rosin examined Hurtado and concluded that she had "not yet reached a plateau in her level of cognitive recovery" and suggested that Hurtado continue rehabilitation, which s h e did for the next two years.5 In addition to rehabilitation, Hurtado was prescribed various medications to manage h e r condition. On January 31, 2006, Hurtado suffered a seizure. Since then, she has not s u f f ere d any additional seizures, and medical records indicate that her condition has s ig n if ic a n tly improved.6 A t the time her application was filed, Hurtado was a 17 year old female with a 9th g ra d e education.7 Prior to August 30, 2004, she had worked at Sonic Drive-In Restaurant a n d also served as a live-in caregiver to two small children.8

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TR 105. TR 174. TR 181. TR 224-230. TR 169. TR 81, 325. 2

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O n October 28, 2005, the Administrative Law Judge (ALJ) issued a notice of d is m is s a l in Hurtado's case, stating that her request for a hearing was untimely filed.9 H u r ta d o subsequently filed an appeal, and the Appeals Council determined that good cause w a s shown for the late filing. 1 0 The Appeals Council remanded the case with instructions to "further develop the record and provide sufficient rationale for all pertinent conclusions." 1 1 T h e ALJ conducted a hearing, and on May 25, 2007, issued his decision denying her claim. A t step two, the ALJ determined that Hurtado had the following severe medically d e te rm in a b le impairments: seizures; cerebrovascular accident, cognitive disorder, and m ig ra in e s .1 2 Nevertheless, based on her age, education, work experience, and residual f u n c ti o n a l capacity, the ALJ concluded that there were jobs that existed in the national e c o n o m y that Hurtado could perform.1 3 Thereafter, Hurtado appealed the decision, and on A u g u s t 17, 2007, the Appeals Council denied her request for review.14 S t a n d a r d of Review T h is court must affirm the Commissioner's decision if it is supported by substantial e v id e n c e , unless improper legal standards were applied. 42 U.S.C. § 402(g) (2008). On

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TR 28. TR 47. TR 11. Id. TR 17. TR 4. 3

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q u e stio n s of fact, this court may not re-weigh the evidence, substitute its judgment for that o f the defendant, or reverse his decision if a reasonable mind might find that the relevant e v id e n c e he relied upon supports his decision. Newton v. Apfel, 209 F.3d 448, 452 (5th Cir. 2 0 0 0 ). On questions of law, this court may reverse to correct prejudicial legal error. Id. D is a b ility Evaluation T h e Social Security Act defines disability as "the inability to do any substantial g a in f u l activity by reason of any medically determinable physical or mental impairment w h ich can be expected to result in death or which has lasted or can be expected to last for a c o n tin u o u s period of not less than 12 months." 20 C.F.R. § 416.905 (2003). In ascertaining whether a person qualifies as disabled, the Commissioner conducts a f iv e -s te p sequential analysis to determine whether (1) the claimant is presently working; (2) th e claimant has a severe impairment; (3) the impairment meets or equals an impairment lis te d in Appendix 1 of the Social Security regulations; (4) the impairment prevents the c la im a n t from doing past relevant work; and (5) the impairment prevents the claimant from d o in g any other substantial gainful activity. 20 C.F.R. § 416.920(a). If at any step the c la im a n t is found disabled or not disabled, the inquiry is terminated. Lovelace v. Bowen, 813 F .2 d 55, 58 (5th Cir. 1987). At the first four steps, the burden is on the claimant to show she is disabled; at step five the burden shifts to the Commissioner to show that there is other s u b s ta n tia l work in the national economy that the claimant can perform. Bowen v. Yuckert, 4 8 2 U.S. 137, 142 (1987).

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A n a ly sis H u rta d o 's lone argument for reversal is that the ALJ committed legal error by failing to explain his Step 3 finding that her impairments did not meet or equal a listed impairment u n d e r Appendix 1, specifically § 12.02 for Organic Mental Disorders. She relies entirely u p o n the Fifth Circuit's recent decision in Audler v. Astrue, 501 F.3d 446 (5th Cir. 2007). A u d le r vacated and remanded an ALJ decision which did not identify the listed im p a irm e n t for which the claimant's symptoms failed to qualify, nor provide any explanation f o r reaching the conclusion that the claimant's condition was insufficient to meet that listin g 's criteria. The ALJ had summarily disposed of the Step 3 issue with a single u n in f o rm a tiv e sentence: The medical evidence indicates that the claimant has status post lumbar laminectomy, c e rv ic a l disc herniation, headaches and chronic neck and back pain, impairments that a re severe within the meaning of the Regulations but not severe enough to meet or m e d ic a lly equal one of the impairments listed in Appendix 1, Suppart P, Regulations N o . 4. Id. at 448. According to the court, "[s]uch a bare conclusion is beyond meaningful judicial re v iew ," and violates the explicit provision of the Social Security Act requiring the ALJ to d is c u s s the evidence in support of a disability claim and explain the reasons for denial. Id., q u o tin g Clifton v. Chater, 79 F.3d 1007, 1009 (10th Cir. 1996); 42 U.S.C. § 405(b)(1). As in Audler, the ALJ here lingered only briefly at Step 3, dispensing with the issue b y a single sentence: On the basis of the objective evidence, the undersigned Administrative Law Judge fin d s that none of the claimant's impairments, either singly or in combination, are 5

a tte n d e d by clinical signs or laboratory findings which meet or medically equal one o f the impairments listed in Appendix 1, Subpart P, Regulation No. 4. T R . 14. T h is conclusory finding is materially indistinguishable from that condemned in A u d le r . No reference is made to the relevant listing under consideration. The ALJ does m e n tio n the absence of "clinical signs or laboratory findings", but this is little more than b o ile rp la te given the failure to cite record evidence or specify the listing criteria to which th o s e signs or findings might relate. While "an exhaustive point-by-point discussion" is not a lw a ys required, it is error for the ALJ to offer nothing in support of an adverse d e te rm in a tio n at Step 3. Audler, 501 F.3d at 448. Hurtado's claim of legal error is therefore s u s ta in e d . In order to obtain relief, however, Hurtado must demonstrate that this error was not h a rm le ss . "Procedural perfection in administrative proceedings is not required." Mays v. B o w e n , 837 F.2d 1362, 1364 (5th Cir. 1988). The test is whether the substantial rights of a p a rty have been affected. Id. Hurtado contends that the error was harmful "because she at l e a s t arguably meets Listing 12.02" criteria for organic mental disorder. Like the ALJ, h o w e v e r , Hurtado does not list the criteria for this disorder,1 5 nor does she cite to specific

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Section 12.02 provides as follows:

1. The required level of severity for these [Organic Mental] disorders is met when the requirements in both A and B are satisfied, or when the requirements in C are satisfied. A. Demonstration of a loss of specific cognitive abilities or affective changes and the medically documented persistence of at least one of the following: 6

re c o rd evidence purporting to satisfy those criteria. Instead, she merely waves in the general d irec tio n of the "medical record, and Ms. Hurtado's consistent testimony," and asks for a

1. Disorientation to time and place; or 2. Memory impairment, either short-term (inability to learn new information), intermediate, or long-term (inability to remember information that was known sometime in the past); or 3. Perceptual or thinking disturbances (e.g., hallucinations, delusions); or 4. Change in personality; or 5. Disturbance in mood; or 6. Emotional lability (e.g., explosive temper outbursts, sudden crying, etc.) and impairment in impulse control; or 7. Loss of measured intellectual ability of at least 15 I.Q. points from premorbid levels or overall impairment index clearly within the severely impaired range on neuropsychological testing, e.g., the Luria-Nebraska, Halstead-Reitan, etc.; AND B. Resulting in at least two of the following: 1. Marked restriction of activities of daily living; or 2. Marked difficulties in maintaining social functioning; or 3. Marked difficulties in maintaining concentration, persistence or pace; or 4. Repeated episodes of decompensation, each of extended duration; or C. Medically documented history of a chronic organic mental disorder of at least 2 years' duration that has caused more than a minimal limitation of ability to do basic work activities, with symptoms or signs currently attenuated by medication or psychosocial support, and one of the following: 1. Repeated episodes of decompensation, each of extended duration; or 2. A residual disease process that has resulted in such marginal adjustment that even a minimal increase in mental demands or change in the environment would be predicted to cause the individual to decompensate; or 3. Current history of 1 or more years' inability to function outside a highly supportive living arrangement, with an indication of continued need for such an arrangement. 20 C.F.R. Part 404, Subpart P, Appendix 1, § 12.02(A)(B)(C)(1995) (Organic Mental Disorders). 7

re m a n d .16 T h is will not do. While it is the court's duty to "scrutinize the record in its entirety to determine whether substantial evidence" supports the ALJ's decision, it is the claimant's jo b to brief the issues. Perez v. Barnhart, 415 F.3d 457, 462 n. 4 (5th Cir. 2005) (holding th a t arguments inadequately briefed are waived). The court has examined this administrative re c o rd and is satisfied that there is no basis to resuscitate the case. As the Commissioner's brief points out, there is objective medical evidence s u p p o rtin g the ALJ's Step 3 conclusion. Agency medical doctors found that the medical e v id e n c e did not satisfy the Part A criteria under Listing 12.02 because Hurtado merely had a cognitive disorder, not otherwise specified.1 7 They further found that the part B criteria w a s unmet, because she had no more than moderate limitations in areas of daily living, social f u n c tio n in g , concentration, persistence or pace, and episodes of decompensation.1 8 Nor did H u rtad o satisfy the part C criterion, pertaining to a chronic disorder of at least two years d u ra tio n causing more than a minimal limitation of ability to do any basic work activity.19 T h e se findings are consistent with examining opinion evidence. Lindsay Rosin, P h .D ., examined Hurtado in December 2004 and diagnosed her with cognitive disorder, not

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Dkt. 13, at p. 7. TR. 187. TR. 196. TR. 197. 8

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o th e rw ise specified, based on mild to moderate impairments in nonverbal intellectual, e x e cu tiv e , and memory functioning.2 0 In November 2006 a consultative examination was p e rf o rm e d by Mark Lehman, Ph.D., who assessed claimant with only slight to moderate l im i ta tio n s in work-related mental activities.2 1 This examining opinion evidence provides a d d itio n a l substantial support for the ALJ's Step 3 conclusion. Unlike Audler, Hurtado has provided no uncontradicted medical evidence u n d e r m in i n g the ALJ's conclusion that she did not meet or equal a listing impairment. Thus, th e ALJ's failure to present a reasoned explanation for its Step 3 finding did not affect H u rta d o 's substantial rights, and must be classified as harmless error. Hurtado is entitled to n o relief on this basis. C o n c lu s io n The Commissioner's motion is granted, Hurtado's motion is denied, and the decision o f the Commissioner denying Hurtado's claim for supplemental security income under Title X V I of the Social Security Act is affirmed. Signed August 15, 2008, at Houston, Texas.

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TR. 181. TR. 233-35. 9

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