Carpenter v. Astrue
Filing
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MEMORANDUM AND ORDER denying 16 Cross MOTION for Summary Judgment; granting 15 Unopposed MOTION for Summary Judgment (Signed by Magistrate Judge Frances H Stacy) Parties notified.(bwhite, )
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
THERESA A. CARPENTER,
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Plaintiff,
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V.
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CAROLYN W. COLVIN, COMMISSIONER §
OF THE SOCIAL SECURITY
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ADMINISTRATION,
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Defendant.
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CIVIL ACTION NO. H-11-4001
MEMORANDUM AND ORDER GRANTING PLAINTIFF’S
MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT
Before the Court2 in this social security appeal is Plaintiff’s Motion for Summary Judgment
and Memorandum in Support (Document No. 15), and Defendant’s cross Motion for Summary
Judgment and Memorandum in Support (Document Nos. 16 & 17). After considering the cross
motions for summary judgment, Plaintiff’s Response to Defendant’s Motion for Summary Judgment
(Document No. 18), the administrative record, the written decision of the Administrative Law Judge,
and the applicable law, the Court ORDERS, for the reasons set forth below, that Plaintiff’s Motion
for Summary Judgment is GRANTED, Defendant’s Motion for Summary Judgment is DENIED, and
this proceeding is REMANDED to the Commissioner of the Social Security Administration for
1
Carolyn W. Colvin became the Acting Commissioner of Social Security on February 14,
2013. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, she therefore should be
substituted for Michael J. Astrue as the defendant in this case.
2
On March 20, 2012, pursuant to the parties’ consent, this case was transferred by the
District Judge to the undersigned Magistrate Judge for all further proceedings. See Document No.
11.
further proceedings.
I.
Introduction
Plaintiff Theresa A. Carpenter (“Carpenter”) brings this action pursuant to Section 205(g)
of the Social Security Act (“Act”), 42 U.S.C. § 405(g), seeking judicial review of an adverse final
decision of the Commissioner of the Social Security Administration (“Commissioner”) denying her
applications for disability insurance benefits (“DIB”) and supplemental security income benefits
(“SSI”). Carpenter argues that: (1) “The ALJ’s Finding that Plaintiff’s Seizure Disorder is Not A
Medically Determinable Impairment is Unsupported by Substantial Evidence and Results form Legal
Error”; (2) “The ALJ Failed to Give Proper Weight to the Opinion of Plaintiff’s Treating Physician”;
and (3) “The ALJ’s RFC Finding is Unsupported by Substantial Evidence and Results from Legal
Error.”
Plaintiff’s Memorandum in Support of Plaintiff’s Motion for Summary Judgment
(Document No. 15) at 3. The Commissioner, in contrast, argues that there is substantial evidence
in the record to support the ALJ’s decision, and that the decision comports with applicable law.
II.
Administrative Proceedings
On August 8, 2009, Carpenter applied for disability insurance benefits and supplemental
security income benefits, claiming that she has been unable to work since December 31, 2007, as a
result of a brain aneurysm/venous angioma, seizures, high blood pressure, thyroid problems, and
back problems.
(Tr. 172-176; 211, 233).
The Social Security Administration denied the
applications at the initial and reconsideration stages. After that, Carpenter requested a hearing before
an ALJ. The Social Security Administration granted her request and the ALJ, William B. Howard,
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held a hearing on October 27, 2010, at which Carpenter’s claims were considered de novo. (Tr. 3386). On September 13, 2011, the ALJ issued his decision finding Carpenter not disabled. (Tr. 1020).
Carpenter sought review of the ALJ’s adverse decision with the Appeals Council. The
Appeals Council will grant a request to review an ALJ’s decision if any of the following
circumstances are present: (1) it appears that the ALJ abused his discretion; (2) the ALJ made an
error of law in reaching his conclusion; (3) substantial evidence does not support the ALJ’s actions,
findings or conclusions; or (4) a broad policy issue may affect the public interest. 20 C.F.R.
§ 404.970; 20 C.F.R. § 416.1470. After considering Carpenter’s contentions in light of the
applicable regulations and evidence, the Appeals Council found no basis upon which to grant
Carpenter’s request for review. (Tr. 1-3). The ALJ’s decision thus became final.
Carpenter has filed a timely appeal of the ALJ’s decision. 42 U.S.C. § 405(g). The parties
have filed cross motions for summary judgment (Document Nos. 15 & 16). The appeal is now ripe
for ruling.
III.
Standard for Review of Agency Decision
The court’s 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 (5th Cir. 1999).
Indeed, Title 42, Section 405(g) limits judicial review of the Commissioner’s decision: “The findings
of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall
be conclusive.” The Act specifically grants the district court the power to enter judgment, upon the
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pleadings and transcript, “affirming, modifying, or reversing the decision of the Commissioner of
Social Security, with or without remanding the cause for a rehearing” when not supported by
substantial evidence. 42 U.S.C.§ 405(g). While it is incumbent upon the court to examine the record
in its entirety to decide whether the decision is supportable, Simmons v. Harris, 602 F.2d 1233, 1236
(5th Cir. 1979), the court may not “reweigh the evidence in the record nor try the issues de novo, nor
substitute [its] judgment for that of the [Commissioner] even if the evidence preponderates against
the [Commissioner’s] decision.” Johnson v. Bowen, 864 F.2d 340, 343 (5th Cir. 1988); Jones v.
Apfel, 174 F.3d 692, 693 (5th Cir. 1999); Cook v. Heckler, 750 F.2d 391 (5th Cir. 1985). Conflicts
in the evidence are for the Commissioner to resolve. Anthony v. Sullivan, 954 F.2d 289, 295 (5th
Cir. 1992).
The United States Supreme Court has defined “substantial evidence,” as used in the Act,
to be “such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co.
v. N.L.R.B., 305 U.S. 197, 229 (1938). Substantial evidence is “more than a scintilla and less than
a preponderance.” Spellman v. Shalala, 1 F.3d 357, 360 (5th Cir. 1993). The evidence must create
more than “a suspicion of the existence of the fact to be established, but no ‘substantial evidence’
will be found only where there is a ‘conspicuous absence of credible choices’ or ‘no contrary medical
evidence.’” Hames v. Heckler, 707 F.2d 162, 164 (5th Cir. 1983).
IV.
Burden of Proof
An individual claiming entitlement to disability insurance benefits under the Act has the
burden of proving his disability. Johnson v. Bowen, 864 F.2d 340, 344 (5th Cir. 1988).
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The Act
defines disability as the “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). The impairment must be proven through medically accepted clinical and
laboratory diagnostic techniques. 42 U.S.C. § 423(d)(3). The impairment must be so severe as to
limit the claimant in the following manner:
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, regardless of whether such work exists in the
immediate area in which he lives, or whether a specific job vacancy exists for him,
or whether he would be hired if he applied to work.
42 U.S.C. § 423(d)(2)(A). The mere presence of an impairment is not enough to establish that one
is suffering from a disability. Rather, a claimant is disabled only if he is “incapable of engaging in
any substantial gainful activity.” Anthony v. Sullivan, 954 F.2d 289, 293 (5th Cir. 1992) (quoting
Milam v. Bowen, 782 F.2d 1284, 1286 (5th Cir. 1986)).
The Commissioner applies a five-step sequential process to decide disability status:
1.
If the claimant is presently working, a finding of “not disabled” must be
made;
2.
If the claimant does not have a “severe impairment” or combination of
impairments, he will not be found disabled;
3.
If the claimant has an impairment that meets or equals an impairment listed
in Appendix 1 of the Regulations, disability is presumed and benefits are
awarded;
4.
If the claimant is capable of performing past relevant work, a finding of “not
disabled” must be made; and
5.
If the claimant’s impairment prevents him from doing any other substantial
gainful activity, taking into consideration his age, education, past work
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experience and residual functional capacity, he will be found disabled.
Anthony, 954 F.2d at 293; see also Leggett v. Chater, 67 F.3d 558, 563 n.2 (5th Cir. 1995); Wren v.
Sullivan, 925 F.2d 123, 125 (5th Cir. 1991). Under this framework, the claimant bears the burden
of proof on the first four steps of the analysis to establish that a disability exists. If successful, the
burden shifts to the Commissioner, at step five, to show that the claimant can perform other work.
McQueen v. Apfel, 168 F.3d 152, 154 (5th Cir. 1999). Once the Commissioner shows that other jobs
are available, the burden shifts, again, to the claimant to rebut this finding. Selders v. Sullivan, 914
F.2d 614, 618 (5th Cir. 1990). If, at any step in the process, the Commissioner determines that the
claimant is or is not disabled, the evaluation ends. Leggett, 67 F.3d at 563.
Here, the ALJ found at step one that Carpenter had not engaged in substantial gainful activity
since December 31, 2007, Carpenter’s alleged onset date. At step two, the ALJ found Carpenter had
the following severe impairments: degenerate disc disease in the cervical spine, degenerative joint
disease in the left shoulder, obesity, and an affective mood disorder. In addition, the ALJ specifically
found at step two that Carpenter did not have a “medically determinable” seizure disorder. At step
three, the ALJ concluded that Carpenter did not have an impairment or combination of impairments
that met or medically equaled a listed impairment. The ALJ then, prior to consideration of steps four
and five, determined that Carpenter had the residual functional capacity (“RFC”) to perform a limited
range of light work. (Tr. 16-18). Applying that RFC, the ALJ found, at step four, that Carpenter
could not perform her past work as a home health care aide. At step five, using that same RFC, and
considering Carpenter’s age, education, and work experience, the ALJ concluded that there were jobs
in significant numbers in the national and regional economy that Carpenter could perform and that
she was, therefore, not disabled.
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In this appeal, Carpenter first challenges ALJ’s determination at step two. In particular,
Carpenter argues that the ALJ erred in failing to find that she had a medically determinable seizure
disorder. According to Carpenter, whether she suffers from electrical/epileptic type seizures or
psychologically-based pseudo-seizures, there is evidence in the record that she has a “medically
determinable” seizure impairment. In addition, Carpenter contends that the ALJ erred at step five
in determining and applying her RFC because he failed to properly consider the opinions and
diagnoses of her treating physician and failed to account for her degenerative disc and degenerative
joint impairments.
In 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) subjective evidence of pain and disability as testified
to by the plaintiff and corroborated by family and neighbors; and (4) the plaintiff’s educational
background, work history and present age. Wren, 925 F.2d at 126.
V.
Discussion
Disability is defined as the “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). A medically determinable impairment is “an impairment which
has demonstrable anatomical, physiological or psychological abnormalities. Such abnormalities are
medically determinable if they manifest themselves through medical evidence consisting of
symptoms, signs, and laboratory findings. Symptoms alone, however, do not constitute a basis for
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finding a medically determinable impairment.” SSR 82-58, 1982 WL 31378, 1. “If no medically
determinable physical impairment is found, yet the person alleges work-related limitations due to
a symptom normally attributable to a physical impairment, the possibility of a medically
determinable severe mental impairment must be considered.” Id. at 2 (emphasis in original).
Here, Carpenter maintains that she has a “medically determinable” seizure impairment, which
may or may not be psychologically-based. The ALJ found, as follows, that Carpenter’s alleged
seizure impairment was not “medically determinable”:
. . . Dr. Bentlif indicated the claimant has a long history of subjective reports of
possible petit mal seizure-type disorder (Exhibits 4F5 and 14F6). Nurse’s notes in
August 2009 show that claimant described having a tonic-clonic seizure at home and
an episode one year previously (Exhibit 11F5). However, the record contains no
evidence of convulsions with injury to the tongue or loss of control of bladder or
rectal sphincters. Dr. Bentlif stated the medical record includes no documentation
of observed seizure.
The record shows the claimant has had [ ] multiple brain evaluations, including CT
scans, EEG, MRI studies, and neurological consultations, but no positive findings
were described (Exhibit 14F36, 42-44, 66). Dr. Bentlif noted that occasional
comments throughout the record indicate the claimant’s seizures are on a functional
basis. The record shows the claimant has described temporary, transient attacks,
which have been atypical for what has been ailing her. For example, the record
shows the claimant had a functional, psychological-based seizure that stopped when
her boyfriend suggested a snake was nearby (Exhibit 4F5). Dr. Bentlif explained that
having been able to stop the attack at will suggests that the claimant’s experience was
a pseudo-seizure rather than based on electrical changes in the brain. Based on his
professional opinion and the record as a whole, Dr. Bentlif testified the claimant does
not have a seizure disorder.
A medically determinable physical or mental impairment is an impairment that
results from anatomical, physiological, or psychological abnormalities, which can be
shown by medically acceptable clinical and laboratory diagnostic techniques.
Regardless of how many symptoms a claimant alleges, or how genuine a claimant’s
complaints may appear to be, the existence of a medically determinable physical or
mental impairment cannot be established in the absence of objective medical
abnormalities. (SSR 96-4p). The objective medical evidence of record does not
corroborate the claimant’s allegation of seizure disorder; thus, this condition is not
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medically determinable.
(Tr. 13-14).
Having considered the objective medical evidence, the diagnoses and expert medical
opinions, and Carpenter’s subjective complaints, the Court concurs with Carpenter that substantial
evidence does not support the ALJ’s determination that Carpenter’s alleged seizure impairment was
not “medically determinable.” First, objective medical evidence shows that Carpenter has long
complained of, and been treated for, a seizure disorder. (Tr. 351 (“seizure like activity”); 352
(“seizure type disorder”); 354 (“pseudoseizure-like activity”); 363 (“seizure witnessed by family”);
366 (“Pt had episode on 3/25/97 where she “passed out [and] paramedic said she was jerking” . . .
paramedics reported seeing seizure activity”); 412, 414 (seizure disorder”); 477 (clinical impression:
seizure disorder); 485 (“petit mal seizure”); 518 (seizure witnessed by friends; “she was shaking in
her sleep”); 542 (“Impression: seizure with known seizure disorder”); 689 (“seizure disorder out of
Klonopin”); 722 (“Patient likely has complex seizure”); 725 (“Episodes of right-sided sensory and
motor deficits with difficulty expressing herself. Possible partial seizures versus transient ischemic
attack.”); 973 (“Impression: status post seizure with right-sided deficits, Todds paralysis, currently
improved. Had 2 other breakthrough seizures as well, on in the ambulance and one in the emergency
room, witnessed.”)). She takes seizure medication. (Tr. 474, 535, 599, 602-603, 973, 1010, 1317).
Medical personnel have observed seizure activity on at least two occasions. (Tr. 366; 973). While
numerous medical tests, including CT scans, MRIs and EEGs have not revealed typical seizure
activity, the type of seizures Carpenter complains of do not appear to be “typical.” Indeed, the
medical expert who testified at the hearing, Dr. Philip Bentlif, opined that he did not believe
Carpenter had a seizure disorder (Tr. 70), but he also testified that Carpenter’s complaints were more
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consistent with pseudo-seizures, which are psychological in nature (Tr. 69, 76). That is consistent
with some of the other evidence in the record. (Tr. 352 (“Dr. Boch has told her, but not the patient
directly, that most of these are psychological in nature and most likely pseudoseizures”); 354
(“pseudoseizure-like activity”). It is also consistent with Dr. Bentlif’s testimony about the difference
between an electrical, epileptic-type seizure and a pseudo-seizure:
. . . it seems that if she has, as we’ve heard from Counsel, if she gets nervous or if she
gets into a state of anxiety she may have a pseudo seizure or some other
manifestation. . . . Well, the record as a whole, the seizures are described [rather]
than observed and there has been no description of tonic-clonic convulsions or rectal
sphincters and there’s just, she gives a history of having seizures but again the
description in 4F, page 5 states that she was able to at that time at any rate was able
to put on seizures and stop them at will which would suggest on the basis of that
good description in the record that these are pseudo seizures, functional rather than
based on electrical changes in the brain and the EEG report was negative. . . . Well,
what we’re getting down to is a discussion again based on the record whether or not
the seizures are genuine seizures [being] abnormalities producing seizures or whether
these are functional pseudo seizures and a seizure is a seizure whether it’s an
electrical seizure or drunk withdrawal seizure or a pseudo seizure.
(Tr. 69, 71, 76). Finally, there is testimony from Carpenter that when she has a “seizure” she
experiences numbness on her right side, is nauseous, and can’t talk (Tr. 51-54). She has had this
type of “seizure” activity since 1995. (Tr. 49).
Because the ALJ only appears to have considered whether Carpenter had a medically
determinable “seizure disorder” that is electrical/epileptic in nature, and did not consider whether
Carpenter had a medically determinable pseudo-seizure disorder, an impairment that has support in
the objective medical evidence, including the observations of seizure activity by medical personnel
on two occasions, the diagnoses and expert medical opinions, and Carpenter’s subjective complaints,
the ALJ erred at step two in his determination that Carpenter did not have a medically determinable
“seizure disorder.” Given that error at step two, the sequential steps of the disability analysis must
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be reconsidered as well. Thus, this proceeding must be remanded for further development and
consideration of whether Carpenters’s seizure disorder is medically determinable as a psychological
impairment and whether such an impairment affects the subsequent, sequential steps of the disability
analysis.
VI.
Conclusion and Order
Based on the foregoing, and the conclusion that substantial evidence does not support the
ALJ’s decision that Carpenter does not have a medically determinable seizure disorder, it is
ORDERED that Plaintiff’s Motion for Summary Judgment (Document No. 15) is
GRANTED, Defendant’s Motion for Summary Judgment (Document No. 16) is DENIED, and this
matter is REMANDED to the Commissioner pursuant to sentence four, 42 U.S.C. 405g, for further
proceedings consistent with this Memorandum and Order.
Signed at Houston, Texas, this 1st day of March, 2013.
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