Jones v. Colvin
Filing
15
AMENDED MEMORANDUM OPINION (Signed by Magistrate Judge Nancy K. Johnson) Parties notified.(sbutler, 4)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
MARY BETH JONES,
§
§
Plaintiff,
§
§
v.
§
§
CAROLYN W. COLVIN,
§
ACTING COMMISSIONER OF THE
§
SOCIAL SECURITY ADMINISTRATION, §
§
Defendant.
§
CIVIL ACTION NO. H-13-1221
AMENDED MEMORANDUM OPINION
Pending before the court1 are Plaintiff's Motion for Summary
Judgment
(Doc.
11)
Judgment (Doc. 10).
and
Defendant's
Cross-Motion
for
Summary
The court has considered the motions, the
responses, the administrative record, and the applicable law.
For
the reasons set forth below, the court DENIES Plaintiff's motion
and GRANTS Defendant's cross-motion.
I. Case Background
Plaintiff filed this action pursuant to 42 U.S.C. §§ 405 (g)
and 1383(c)(3) for judicial review of an unfavorable decision by
the
Commissioner
of
the
Social
Security
Administration
("Commissioner" or "Defendant") regarding Plaintiff’s claims for
disability insurance benefits and for supplemental security income
under Titles II and XVI of the Social Security Act ("the Act").
A. Medical History
1
The parties consented to proceed before the undersigned magistrate
judge for all proceedings, including trial and final judgment, pursuant to 28
U.S.C. § 636(c) and Federal Rule of Civil Procedure 73. Docs. 7, 8.
Plaintiff was born on February 13, 1966, and was forty-one
years old on the date of the alleged onset of disability.2
Plaintiff has a high school education and last worked full-time as
a customer service liaison for her husband's company in 2007.3
Plaintiff's medical records reflect that Plaintiff has a
history of degenerative disc disease ("DDD") dating back to 2001
that caused continuing pain and she had been taking Wellbutrin for
depression since 1999.
Plaintiff claimed that her chronic lower
back pain and radicular-type pain in her legs became so severe that
it impeded her daily activities.4
Her symptoms became intolerable
and she underwent surgery for spondylolisthesis at the Northwest
Spine Center in May 2008.5
Plaintiff
had
a
magnetic
resonance
imaging
scan
("MRI")
interpreted by Jeffrey Watts, M.D., ("Dr. Watts") in November 2008
that showed degenerative changes of the spine.6
The MRI revealed
broad posterior disc protrusion at C3-C4, greatest at the left of
midline, and there was cord contact with narrowing of the central
canal and mild to moderate narrowing of the left foramen.7
2
See Tr. of the Admin. Proceedings (“Tr.”) 226.
3
See Tr. 62.
4
See Tr. 22.
5
See id.
6
See Tr. 270-71.
7
See id.
2
The
exiting left C4 nerve may have been compromised causing left C4
radiculopathy, according to the report.8
At C4-C5, the scan showed
broad posterior disc protrusion with thecal sac effacement and mild
narrowing of the central canal.9
At C5-C6 and C6-C7, the scan
showed broad posterior disc protrusion with foraminal involvement
and mild narrowing of the central canal at C5-C6 (without overt
narrowing at C6-C7) and moderate narrowing of the foramina at both
levels.10
according
The exiting C6 and C7 nerves may have been compromised,
to
Dr.
Watts,
causing
multilevel
bilateral
radiculopathy.11
Plaintiff began to experience a new type of pain in her lower
back and began seeing Jack Chapman, M.D., ("Dr. Chapman") of
Woodlands Pain Management in 2008.12
Plaintiff underwent several
epidural steroid injections in the cervical and lumbar spine.13
Terry Bagley, M.D., ("Dr. Bagley") examined Plaintiff in July
2009 for her chronic neck and back pain.14
Plaintiff complained
of pain in her mid-back area below her shoulder blades, but above
8
See id.
9
See id.
10
See id.
11
See id.
12
See Tr. 273.
13
See id.
14
See Tr. 334.
3
the L1, grading it as a "9-10/10" aching pain.15
pain,
she
said,
was
an
aching,
burning,
radicular symptoms down her right leg.16
Her lower back
stabbing
pain
with
She had some numbness in
her left arm, according to Plaintiff, and she experienced a
stabbing pain in her neck.17 A physical examination showed that her
range of motion in her lumbar spine was decreased to about thirty
to forty percent of normal movement with flexion and extension.18
Dr. Bagley observed that Plaintiff was able to toe-and-heel walk
with difficulty and her cervical range of motion was decreased by
fifteen to twenty percent.19 He noted that her reflexes were absent
at the knees and ankles and that her straight leg raise was
positive.20
She exhibited high paraspinal pain in the lumbar and
thoracic regions, according to Dr. Bagley’s notes, and there was
tenderness over the incision midline.21
Dr. Bagley observed tight
bands with active trigger points and tenderness in her bilateral
trapezius muscles.22
In August 2009, Aileen Lee, M.D., ("Dr. Lee") evaluated
15
Tr. 334.
16
See id.
17
See id.
18
See Tr. 263.
19
See id.
20
See id.
21
See id.
22
See id.
4
Plaintiff's mental health for disability determination.23 Plaintiff
alleged DDD, depression, numbness in left hand and fingers, and
pain in her back, neck, and shoulders.24
Dr. Lee opined that
Plaintiff's depression appeared driven by situational stress and
that Plaintiff appeared quite overwhelmed.25 Dr. Lee further stated
that Plaintiff would need a psychological intervention to address
the psychological component of her pain status if she were ever to
return to the work arena.26 Plaintiff was diagnosed with Chronic
Pain
Disorder
associated
with
both
psychological
factors
and
medical conditions with a global assessment functioning (“GAF”) of
fifty.27
B. Application to Social Security Administration
Plaintiff filed for disability insurance benefits and for
supplemental security income on May 22, 2009, claiming an inability
to work due to a disorder of the spine that causes chronic pain.28
In a disability report that Plaintiff completed near the time
of her application, Plaintiff stated that she was five-feet-four-
23
See Tr. 372-76.
24
See id.
25
See id.
26
See id.
27
See Tr. 375. A GAF of 50 indicated serious symptoms or serious
impairment in social or occupational functioning. DSM-IV-TR, p. 34.
28
See Tr. 160, 168.
5
inches tall and weighed 104 pounds.29
She described the work
limitations caused by her back surgery in this way:
"[One] of the pins used for bone fusion has left me
with severe pains in the pin area. It[’]s painful
to drive and sit. Degenerative disc disease. . .
cause[s] severe pain which makes it difficult to
stand for a long time. Bulging disc in neck causes
pain and sharp aching in shoulder mak[ing] it
difficult to do work for long periods. All of these
conditions limit my ability to lift and carry. The
pain in my neck and shoulder is so severe sometimes
it causes unbearably painful muscle cramping in my
neck and numbness in my left hand and fingers,
which limits my ability to sit at desk for long
periods of time. The crushing pain in my mid back
is so bad after being on my feet for long periods
that it makes me depressed."30
Her medications at the time were Flexeril, Lidocaine patch,
Norco, and Wellbutrin.31
Plaintiff reported severe fatigue as a
side effect of Flexeril and occasional nausea or drowsiness as a
side effect of Norco.32
Plaintiff stated that her daily activities included showering
and making a simple breakfast for herself and her husband; making
a lunch for her husband and daughter; waking her daughter and
helping her get dressed for school; occasionally doing chores such
as laundry, cleaning the dishes, paying bills online, or shopping
at the grocery store; taking her two children to school; eating
29
See Tr. 180.
30
Tr. 181.
31
See Tr. 191.
32
See id.
6
lunch; picking up her children from school; fixing a simple dinner
for the family; and getting her daughter ready for bed.33
With regard to her physical abilities, Plaintiff reported that
she could not lift a gallon of milk with one hand without pain,
could not bend or stand for periods over thirty minutes due to
numbness in her right leg or pain in her left foot, could not reach
without pain, and could not sit for long periods of time without
pain.34
She stated that depression made completing tasks difficult
and had caused her to stop most outside social interaction, except
for Sunday visits to church.35
Mikhail Bargan, M.D., ("Dr. Bargan") completed a Physical
Residual Functional Capacity ("RFC") assessment in August 2009.36
This assessment reflected that Plaintiff was capable of frequently
lifting ten pounds, standing or walking for at least two hours in
an eight-hour workday, sitting for about six hours in an eight-hour
workday, and unlimited pushing or pulling.37
Dr. Bargan further
opined that Plaintiff could occasionally climb a ramp/stairs,
stoop, kneel, crouch, or crawl, and could frequently balance.38
33
Tr. 217.
34
Tr. 222, 224.
35
Tr. 222.
36
See Tr. 377-84.
37
See Tr. 378.
38
See Tr. 379.
7
He
cited DDD as the partial basis for her limitations, but stated that
Plaintiff can do activities of daily living ("ADLs") fairly well.39
David Yandell, Ph.D, ("Dr. Yandell") completed a mental RFC in
August 2009.40
Dr. Yandell determined that Plaintiff was suffering
from Chronic Pain Disorder with both psychological factors and
medical condition.41
mildly
limited
ADLs
Dr. Yandell determined that the disorder
and
Plaintiff’s
ability
to
maintain
concentration, persistence, or pace; it also moderately limited her
ability
to
maintain
social
functioning.42
With
regard
to
Plaintiff's mental RFC, Dr. Yandell determined that Plaintiff was
not significantly limited in the areas of understanding and memory
or sustaining concentration and persistence.43
As far as social
interaction, Dr. Yandell opined that Plaintiff was moderately
limited in the ability to interact appropriately with the general
public and to get along with coworkers or peers, but Plaintiff was
not significantly limited in the ability to ask simple questions or
request assistance, to accept instruction and respond to criticism
from supervisors, or to maintain socially appropriate behavior and
39
See Tr. 382.
40
See Tr. 385.
41
See Tr. 391.
42
See Tr. 395.
43
See Tr. 399.
8
adhere to basic standards of neatness and cleanliness.44
As far as
adaptation, Dr. Yandell stated Plaintiff was moderately limited in
the ability to respond appropriately to changes in the work setting
and the ability to set realistic goals or make plans independent of
others, but Plaintiff was not significantly limited in awareness of
normal hazards, taking appropriate precautions, or the ability to
travel to unfamiliar places or use public transportation.45
Defendant denied Plaintiff's application at the initial and
reconsideration levels.46
administrative
law
Plaintiff requested a hearing before an
judge
("ALJ")
of
the
Social
Security
Administration. The ALJ granted Plaintiff's request and conducted
a hearing on May 19, 2011.47 No testimony was given at this hearing
because the Plaintiff appeared without counsel. Another hearing was
requested and conducted on December 23, 2011.48
C. December 23, 2011 Hearing
Plaintiff and Karen Nielsen ("Nielsen"), a vocational expert,
testified at the hearing.49 Plaintiff testified that her last job
44
See Tr. 400.
45
See id.
46
See Tr. 1-3.
47
See Tr. 41.
48
See Tr. 50.
49
See id.
9
was a graphic design project in September 2011.50 She reported that
the last time she held a full-time job was in 2007 when she worked
as liaison for her husband's company, but that she left when the
company downsized due to the economy.51
As far as her medical condition, Plaintiff testified that she
had "chronic pain in [her] lower back, [her] mid back, and also
[her] neck" that had become a problem after her son was born in
1999.52
She stated that the pain became unbearable in 2008 and as
a result, she had to have bone-fusion surgery for DDD in May 2008.53
She said that the surgery stopped specific leg pains, but started
other pains, such as in her mid-back resulting from the pin placed
in her lower back during surgery.54 Plaintiff testified that she
conducted her own post-surgery physical therapy due to expense.55
Plaintiff claimed that her pain level at the time of the
hearing was "a ten," despite her use of pain medications such as
Morphine and Lyrica, which did not address all of her pain.56
Plaintiff said she had been recently referred from her chronic pain
50
See Tr. 56-60.
51
See Tr. 62.
52
Tr. 65.
53
See Tr. 66.
54
See id.
55
See Tr. 67. Dr. Amed is mentioned in the administrative record only
at the hearing during Plaintiff’s testimony. See id. The court cannot find any
medical records attributed to him.
56
Tr. 68.
10
doctor, Dr. Chapman, whom she had been seeing since 2008, to a new
doctor, "Dr. Amed."57 Plaintiff speculated that Dr. Chapman stopped
seeing her because he had been prescribing her the maximum amount
of pain
medication and did not want to continue to do so.58
Plaintiff stated that Dr. Amed recommended aquatic therapy sessions
to her, which she began, until she could no longer afford a
membership at the health club where she was doing the therapy.59
She stated that the aquatic therapy helped her to feel stronger,
but did not negate her pain.60 Plaintiff stated that she then began
yoga at her house three times a week as a form of therapy.61
As far as her mental health, Plaintiff testified that she had
been depressed since 1999, and had taken Wellbutrin, an antidepressant, continuously since that date.62
Plaintiff saw several
therapists for her mental condition when she lived in Arizona in
2009 and started visiting a therapist in Texas one or two times a
month in September 2011, which she reported, "helps a little bit."63
Plaintiff also stated that she had foot bunion surgery on both
feet in 2010 that caused her feet to become more painful than they
57
See Tr. 70.
58
See id.
59
See Tr. 72.
60
See id.
61
See Tr. 73.
62
Tr. 74.
63
Tr. 75.
11
were before.64
Plaintiff stated that she wore orthopedic devices
in her shoes, which gave her some relief.65
She claimed that she
could sit for thirty to forty-five minutes, could lift a gallon of
milk with two hands, could walk about thirty minutes, and could
stand for about twenty to thirty minutes.66
As she listed in her social security application, Plaintiff
reported that her daily routine included getting up, taking her
daughter to school, trying to do physical therapy or eat breakfast,
picking her daughter up from school and helping her with homework,
trying to fix a simple dinner, and getting her children ready for
bed.67
She testified that she was able to let the dog in and out
during the day, do a little laundry and fold towels, and check her
email.68
She claimed that she could no longer grocery shop or do
many of the household cleaning chores.69
Plaintiff expressed interest in jewelry design and creation,
but stated that she could not concentrate long enough to make
anything due to either pain or depression.70
Plaintiff moved from
Texas to Arizona and back to Texas within the last three years for
64
See Tr. 77.
65
See Tr. 81.
66
See id.
67
See Tr. 83.
68
See id.
69
See id.
70
See Tr. 84.
12
her husband's job, but she had not traveled out of the state of
Texas since returning.71
Plaintiff claimed that she had trouble
going to social events because of anxiety.72
Having
reviewed
the
record
and
having
heard
Plaintiff's
testimony, Nielsen categorized Plaintiff's prior work as an artist
as
sedentary
and
representative,
or
semi-skilled.73
skilled
public
The
ALJ
and
her
affairs
asked
work
as
a
customer
liaison,
as
Nielsen
about
sales
sedentary
and
vocational
opportunities for a hypothetical person with the exertional ability
to lift ten pounds; stand or walk for at least two hours of an
eight-hour workday; sit for at least six hours of an eight-hour
workday; pull and push; occasionally use the stairs; occasionally
bend, stoop, crouch, crawl, balance, twist, and squat; get along
with others; understand detailed instructions; concentrate and
perform detailed tasks; and respond and adapt to workplace changes
and supervision.74
Nielsen responded that a person with these
skills could perform Plaintiff's prior work as an artist or
customer sales representative.75 Nielsen testified that Plaintiff's
customer service skills were transferable to a job as a front desk
71
See Tr. 86-87.
72
See Tr. 91.
73
See Tr. 93.
74
See Tr. 94.
75
See Tr. 95.
13
clerk, who might be required to make plans or reservations,
schedule, maintain inventory, control personnel, greet, manage
transportation, perform light bookkeeping, answer the phone, and
file.76
Nielsen stated that there were many positions like this
available regionally and nationally.77
The ALJ then asked Nielsen to change the hypothetical person's
abilities by limiting her to simple tasks.78 Nielsen responded that
this change would negate the ability to perform Plaintiff's past
work, but that other jobs, such as a jewelry designer or order
clerk, would meet that skillset and were available regionally and
nationally.79
In response to Plaintiff's attorney's questioning, Nielsen
stated that the ALJ's hypothetical person would be eliminated from
competitive employment if that person was off task more than
fifteen to twenty percent of the time due to pain or side effects
of medication.80
D. Commissioner's Decision
On February 10, 2012, the ALJ issued a partially favorable
decision finding that Plaintiff was disabled from the period of
76
See Tr. 97.
77
See Tr. 96.
78
See Tr. 97.
79
See Tr. 98.
80
See Tr. 100.
14
December 9, 2007, to December 10, 2009, after which she medically
improved and was no longer qualified as disabled.81
The ALJ found
that Plaintiff had not engaged in substantial gainful activity
during the relevant period and that she had multiple impairments
(DDD with musculoskeletal pain, depression, and headaches) that
were severe.82
The ALJ also decided that Plaintiff's severe impairments,
individually or collectively, did not meet or medically equal any
of the disorders described in the listings of the regulations83 (the
"Listings").84
Specifically, the ALJ found that Plaintiff had not
met or equaled Listing 1.04 (disorders of the spine) because,
though Plaintiff had DDD, Plaintiff "lack[ed] the requisite motor
and sensory deficits."85
(neurological
The ALJ also considered Listing 11.01
impairments)
and
Listing
12.04
(affective
disorders).86
In
determining
Plaintiff's
RFC
to
perform
activities, the ALJ considered the entire record.87
81
See Tr. 12-33.
82
See Tr. 19.
83
20 C.F.R. Pt. 404, Subpt. P, App. 1.
84
See Tr. 20.
85
Tr. 20.
86
See id.
87
See Tr. 21.
15
work-related
The ALJ found
Plaintiff capable of sedentary work.88
However, the ALJ found that
Plaintiff was unable to perform these work-related activities on a
sustained basis for a significant period of time and was unable to
perform any past relevant work for a period of time before December
11, 2009.89 The ALJ also found that there were no jobs that existed
in significant numbers in the national economy that fit Plaintiff's
age, education, work experience, and RFC, and, therefore, Plaintiff
was under a disability from December 11, 2007, through December 10,
2009.90
Next, the ALJ applied the medical improvement test. Beginning
December 11, 2009, the ALJ found that Plaintiff had not developed
any new severe impairments and her existing impairments still did
not meet or equal any Listing.91
In determining that there was
medical improvement, the ALJ relied on objective medical evidence
related to Plaintiff's ability to work.92
Specifically, the ALJ
found that Plaintiff’s RFC had increased to a sustained, sedentary
level with the abilities to occasionally lift and/or carry ten
pounds and frequently five pounds, stand and/or walk for at least
two hours in an eight-hour workday, sit for at least six hours in
88
See id.
89
See Tr. 23-24.
90
See Tr. 25.
91
See Tr. 27.
92
See Tr. 28.
16
an eight-hour workday, push/pull without limitation, except in the
lower extremities, occasionally climb stairs, bend, stoop, crouch,
crawl, balance, twist, and squat.93
The ALJ found Plaintiff could
not climb ladders, ropes, scaffolds, or run, and could tolerate
only limited exposure to heights, machinery, and uneven surfaces.94
The ALJ found that Plaintiff had the mental capacity to get along
with others, understand detailed instructions, concentrate and
perform detailed tasks, and respond and adapt to workplace changes
and supervision.95
The ALJ decided that Plaintiff's ADLs after December 10, 2009,
did not support the level of alleged severity after her initial
back surgery.96 Further, the ALJ stated that Plaintiff's statements
concerning the intensity, persistence, and limiting effects of her
symptoms were not credible because of their inconsistency with the
other record evidence, such as Dr. Bargan’s RFC assessment.97
The
ALJ relied on several pieces of medical evidence in the record to
show that Plaintiff's pain was becoming more stable, including: a
series of progress reports from 2010 indicating that her medication
regimen was stabilizing her chronic pain, her discharge from
93
See id.
94
See id.
95
See Tr. 29.
96
See id.
97
See id.
17
physical therapy to an at-home program in August 2011, her GAF
assessment in the normal range of sixty to seventy in July 2011,
and Dr. Gilliland's mental RFC assessment in June 2010.98
Relying
on
the
vocational
expert's
testimony
that
a
hypothetical individual with Plaintiff's RFC after December 10,
2009, would be able to perform her past work as a customer service
representative, a designer, and an artist, the ALJ found Plaintiff
not to be disabled starting December 11, 2009.99
Plaintiff appealed the ALJ's decision, and the Appeals Council
denied Plaintiff's request for review, thereby transforming the
ALJ's decision into the final decision of the Commissioner.100
Plaintiff then timely sought judicial review of the decision by
this court.
II. Standard of Review and Applicable Law
The court's review of a final decision by the Commissioner
denying disability benefits is limited to the determination of
whether: 1) the ALJ applied proper legal standards in evaluating
the record; and 2) substantial evidence in the record supports the
decision.
Waters v. Barnhart, 276 F.3d 716, 718 (5th Cir. 2002).
A. Legal Standard
In order to obtain disability benefits, a claimant bears the
98
See Tr. 29-31.
99
See Tr. 31-32.
100
See Tr. 1-6.
18
ultimate burden of proving she is disabled within the meaning of
the Act.
Wren v. Sullivan, 925 F.2d 123, 125 (5th Cir. 1991).
Under the applicable legal standard, a claimant is disabled if she
is unable "to engage in any substantial gainful activity by reason
of any medically determinable physical or mental impairment. . .
which has lasted or can be expected to last for a continuous period
of not less than twelve months."
42 U.S.C. § 423(d)(1)(a); see
also Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994).
The
existence of such a disabling impairment must be demonstrated by
"medically acceptable clinical and laboratory diagnostic" findings.
42 U.S.C. §§ 423(d)(3), (d)(5)(A); see also Jones v. Heckler, 702
F.2d 616, 620 (5th Cir. 1983).
To determine whether a claimant is capable of performing any
"substantial
gainful
activity,"
the
regulations
provide
that
disability claims should be evaluated according to the following
sequential five-step process:
(1) A claimant who is working, engaging in a
substantial gainful activity, will not be found to
be disabled no matter what the medical findings
are; (2) a claimant will not be found to be
disabled unless [s]he has a "severe impairment;"
(3) a claimant whose impairment meets or is
equivalent to [a Listing] will be considered
disabled without the need to consider vocational
factors; (4) a claimant who is capable of
performing work that [s]he has done in the past
must be found "not disabled;" and (5) if the
claimant is unable to perform h[er] previous work
as a result of h[er] impairment, then factors such
as h[er] age, education, past work experience, and
[RFC] must be considered to determine whether [s]he
can do other work.
19
Bowling v. Shalala, 36 F.3d 431, 435 (5th Cir. 1994); see also 20
C.F.R. §§ 404.1520, 416.920. The analysis stops at any point in the
process upon a finding that the claimant is disabled or not
disabled.
Greenspan, 38 F.3d at 236.
B. Substantial Evidence
The widely accepted definition of "substantial evidence" is
"that quantum of relevant evidence that a reasonable mind might
accept as adequate to support a conclusion."
F.3d 131, 135 (5th Cir. 2000).
Carey v. Apfel, 230
It is "something more than a
scintilla but less than a preponderance."
Id.
The Commissioner
has the responsibility of deciding any conflict in the evidence.
Id.
If the findings of fact contained in the Commissioner's
decision are supported by substantial record evidence, they are
conclusive, and this court must affirm.
42 U.S.C. § 405(g);
Selders v. Sullivan, 914 F.2d 614, 617 (5th Cir. 1990).
Only if no credible evidentiary choices of medical findings
exist to support the Commissioner's decision should the court
overturn it.
1988).
Johnson v. Bowen, 864 F.2d 340, 343-44 (5th Cir.
In applying this standard, the court is to review the
entire record, but the court may not reweigh the evidence, decide
the issues de novo, or substitute the court's judgment for the
Commissioner's judgment.
Cir. 1999).
Brown v. Apfel, 192 F.3d 492, 496 (5th
In other words, the court is to defer to the decision
20
of the Commissioner as much as is possible without making its
review meaningless.
Id.
III. Analysis
Plaintiff requests judicial review of the ALJ's decision to
deny disability benefits.
Defendant argues that the decision is
legally sound and is supported by substantial evidence.
Plaintiff
asserts
that
the
ALJ's
decision
contains
the
following errors: (1)(a) The ALJ erred in finding that Plaintiff
did not meet or equal Listing 1.04; (1)(b) The ALJ erred in failing
to acknowledge Plaintiff's supporting medical evidence; (2) The
ALJ erred in not obtaining a medical expert opinion on the issue of
medical equivalence; (3) The ALJ erred in improperly applying the
medical improvement test when determining whether Plaintiff's
disability had ended; (4)(a) The ALJ erred in improperly concluding
that Plaintiff's symptoms were exaggerated based on ADLs; (4)(b)
The ALJ erred in using selected testimony to support conclusions,
despite finding that Plaintiff's testimony was not wholly credible.
The court will address these issues as they arise logically
from the ALJ’s decision.
A. Listing 1.04
To meet the criteria for Listing 1.04(A) under Step Three of
the sequential process, Plaintiff bears the burden of providing
objective medical evidence to prove the following:
Plaintiff has a disorder of the spine, such as herniated
21
nucleus
pulposus,
spinal
arachnoiditis,
spinal
stenosis,
osteoarthritis, DDD, facet arthritis, or vertebral fracture, that
results in a compromise of a nerve root or spinal cord, as well as
evidence of nerve root compression characterized by:
(1)
neuro-anatomic distribution of pain;
(2)
limitation of motion of the spine;
(3)
motor loss (atrophy with associated muscle weakness or
muscle weakness);
(4)
accompanied by sensory or reflex loss; and
(5)
if there is involvement of the lower back, positive
straight-leg raising test (sitting and supine).
20 C.F.R. § 404, Subpt. P., App. 1 § 1.04.
If these conditions are
met, the sequential process is concluded and the claimant is found
disabled without any further analysis of vocational factors.
See
Greenspan, 38 F.3d at 236.
The
crux
substantial
of
the
record
issue
evidence
before
shows
the
court
that
is
not
Plaintiff
whether
met
the
requirements of Listing 1.04(A), but rather, whether there is
substantial record evidence supporting the ALJ's determination that
Plaintiff's impairments did not meet a Listing.
In this case,
Plaintiff has provided evidence in the record showing the following
symptoms on or before December 10, 2009: (1) Plaintiff had DDD,
supported by an MRI administered by Dr. Watts with disc bulges at
22
T4-T5 and disc protrusions at T6-T7 and T7-T8;101
(2) Plaintiff's
spinal cord was compromised, supported by the disc protrusion at
T7-T8, which "flattens the ventral surface of the cord;"102
(3)
Plaintiff had a neuro-anatomic distribution of pain, supported by
Dr. Bagley's July 2009 consultation record;103
(4) Plaintiff had
limited degrees of motion in flexion, extension, right rotation,
left rotation, right lateral flexion, and left lateral flexion,
supported by Dr. Eason's November 2010 range of motion exam;104 (5)
Plaintiff suffered motor loss in the form of weakened muscle
strength, supported by Dr. Eason's November 2010 muscle strength
exam;105
(6) Plaintiff suffered sensory or reflex loss in her knees
and ankles, supported by Dr. Bagley's July 2009 consultation
record;106
and (7) Plaintiff's leg raise was mildly positive on the
right, supported by Dr. Bagley's July 2009 consultation record.107
The ALJ stated that the Plaintiff did not meet Listing 1.04(A)
from December 11, 2007 through December 10, 2009, simply repeating
the regulatory language that "claimant lacks the requisite motor
101
See Tr. 262.
102
See id.
103
See Tr. 334.
104
See Tr. 264.
105
See Tr. 265.
106
See Tr. 335.
107
See Tr. 263.
23
and
sensory
deficits."108
The
ALJ
discussed
no
evidence
in
connection with this determination, cited no agency medical expert,
and gave no reason as to why the above-listed evidence was not
proof of motor and sensory deficits.
Consequently, the court
cannot determine what evidence the ALJ relied on to support his
conclusion.
"Although it is not always necessary that an ALJ
provide an exhaustive discussion of the evidence, bare conclusions,
without
any
explanation
for
the
results
reached,
may
make
meaningful judicial review of the Commissioner's final decision
impossible." Audler v. Astrue, 501 F.3d 446, 448 (5th Cir. 2007).
Here, the problem with the ALJ's conclusion that Plaintiff's
impairment did not meet or equal Listing 1.04 is that it is not
supported by substantial evidence by way of an explanation or by
citation to evidence in the medical record.
Substantial evidence
supports an ALJ's bare conclusion at Step Three only when the
plaintiff fails to demonstrate the specified medical criteria. Cf.
Selders v. Sullivan, 914 F.2d 614, 619 (5th Cir. 1990).
Though the ALJ erred at Step Three for failing to provide
substantial evidence for his conclusion that Plaintiff did not meet
Listing 1.04, remand is necessary only if Plaintiff's substantial
rights have been affected. See Hurtado v. Astrue, No. H-07-3486,
2008 WL 3852361, at *3 (S.D. Tex. Aug. 15, 2008) Mays v. Bowen, 837
F.2d
1362,
108
1364
(5th
Cir.
1988)
Tr. 20.
24
("Procedural
perfection
in
administrative
proceedings
is
not
required"
as
long
as
"the
substantial rights of a party have [not] been affected."); Hurtado
v. Astrue, No. H-07-3486, 2008 WL 3852361, at *3 (S.D. Tex. Aug.
15, 2008). To be entitled to relief, Plaintiff must establish that
the ALJ erred and that the ALJ's error might have altered the
result.
Hurtado, No. H-07-3486, 2008 WL 3852361, at *3; Mays, 837
F.2d at 1364.
Because the court finds that Plaintiff demonstrated specified
medical criteria to support a finding that she met Listing 1.04
from December 9, 2007 through December 10, 2009, a medical expert’s
opinion on equivalence was not necessary and thus, Plaintiff’s
second argument is moot.
The court moves to Plaintiff’s argument
concerning the application of the medical improvement test.
B. The Medical Improvement Test
When determining whether disability benefits continue after a
recent favorable finding, the Commissioner must determine whether
substantial evidence supports a finding of medical improvement in
the
claimant's
impairment,
and,
if
so,
whether
this
medical
improvement is related to the claimant's ability to work.
20
C.F.R. §§ 404.1594, 416.994; see also 42 U.S.C. § 423(f); Griego v.
Sullivan, 940 F.2d 942, 943-44 (5th Cir. 1991). The regulations
define
medical
improvement
as
"any
decrease
in
the
medical
severity" of the impairments that were present at the time of the
most recent finding of disability or continued disability. 20
25
C.F.R. §§ 404.1594, 416.994.
In determining whether medical improvement is related to the
claimant's ability to do work, the Commissioner will compare both
the medical severity of the impairment and the claimant's RFC at
the time of claimant's last favorable medical decision with her
current condition. 20 C.F.R. §§ 404.1594, 416.994. The regulations
outline eight steps to follow in making the determination whether
disability continues.
See 20 C.F.R. §§ 404.1594, 416.994.
The
steps reassess whether: (1) claimant engaged in substantial gainful
activity;
(2)
claimant
has
an
impairment
or
combination
of
impairments which meet or equals a listed impairment; (3) claimant
experienced medical improvement; (4) the medical improvement is
related to the claimant's ability to work; (5) if no medical
improvement is found or is not related to claimant's ability to
work, whether there are any exceptions to the medical improvement
standard
of
review;
(6)
claimant's
current
impairments,
in
combination, are severe; (7) claimant can perform past relevant
work; (8) claimant can do other work.
Id.
The starting point for comparison in the medical improvement
test is the medical severity of the impairment when Plaintiff was
last found disabled.
20 C.F.R. §§ 404.1594, 416.994.
In this
case, had the ALJ determined that Plaintiff met or equaled Listing
1.04, the starting point for comparison would be Step Two, where
the symptoms of her qualifying back injury under Listing 1.04 would
26
be evaluated.
The eight-step test would proceed from that point
and involve a comparison between her symptoms in 2007-2009 and
those after December 10, 2009, with precise explanations of any
changes between the state of the impairment when Plaintiff met the
Listing and the subsequent state of impairment.
Because of the
ALJ's previous error in failing to provide substantial evidence for
his conclusion that Plaintiff did not meet Listing 1.04, and
therefore dismissing it, he skipped over this comparison at Step
Two of the medical improvement test.
Defendant argues that it is “irrelevant” whether Plaintiff met
or equaled Listing 1.04 prior to December 11, 2009, because
Plaintiff was later found disabled anyway.109
The error is not
irrelevant because it caused the medical improvement test to be
incorrectly applied and, thus, opened the door for a potential
change in result.
However, in this case, the court finds that the result did not
change.
Despite the ALJ's errors in the Listing 1.04 analysis and
the misapplication of the medical improvement test, the court finds
that there is sufficient evidence in the medical record to conclude
that Plaintiff did medically improve under the proper application
of the medical improvement test. Specifically, the court relies on
the November 2009 physical exam from Verde Valley Medical Center110
109
Doc. 12, Def.’s Response to Pl.’s Mot. for Summ J. p. 2.
110
See Tr. 449.
27
and the June 2010 physical exam by Dr. Ligon.111
An examination of
these records shows that Plaintiff had no reported musculoskeletal
symptoms at the time of these appointments and that her motor
strength, reflexes, and sensation had all returned to within normal
limits. Because these symptoms had improved from the time that she
had met the Listing, Plaintiff would no longer meet or equal
Listing 1.04.
The medical improvement test would then move on to
follow the same analysis that the ALJ detailed in his decision, and
the ALJ made no error in that analysis.
In support of his
decision, the ALJ cited progress reports and ADLs in finding that
Plaintiff’s RFC improved to a sustained, sedentary level.
At this
RFC, the ALJ found Plaintiff capable of performing past relevant
work that existed regionally and nationally.
As of December 11,
2009, medical improvement had occurred, and Plaintiff was no longer
disabled.
C. The ALJ's Use of Evidence
In cases where there is a mixed record concerning health
problems
and
work-related
limitations,
the
"ALJ's
findings
regarding the debilitating effect of the subjective complaints are
entitled to considerable judicial deference."
James v. Bowen, 793
F.2d 702, 706 (5th Cir. 1986). The ALJ properly recited Plaintiff's
testimony and weighed it against the objective medical evidence.
Specifically, the ALJ compared Plaintiff’s testimony about her ADLs
111
See Tr. 518.
28
(she was able to drive, practice yoga, do small household chores,
and attend art activities and church) with her alleged limited
ability to function and found the testimony and RFC evaluations
inconsistent.
Considering the medical record as a whole, there is
substantial evidence to support the ALJ's credibility findings with
respect to Plaintiff's ADLs and subjective testimony.
D. Summary
Because the court arrives at the same conclusion of medical
improvement after December 11, 2009, the results are the same under
both this court's analysis and the ALJ's decision.
The ALJ's
errors did not alter the result and therefore, the court cannot
overturn the decision.
IV. Conclusion
Based on the foregoing, the court DENIES Plaintiff's Motion
for
Summary
Judgment
and
GRANTS
Defendant's
Cross-Motion
Summary Judgment.
SIGNED in Houston, Texas, this 31st day of July, 2014.
______________________________
U.S. MAGISTRATE JUDGE
29
for
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