Petticrew v. Colvin
Filing
21
MEMORANDUM AND ORDER denying 17 Cross MOTION for Summary Judgment , granting 15 Cross MOTION for Summary Judgment . Case is remanded to the Social Security Administration for further proceedings consistent with this Order.(Signed by Magistrate Judge Frances H Stacy) Parties notified.(glyons, 4)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
PAUL PETTICREW,
Plaintiff,
V.
CAROLYN W. COLVIN, ACTING
COMMISSIONER
OF THE SOCIAL SECURITY
ADMINISTRATION,
Defendant.
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CIVIL ACTION NO. 4:13-CV-2119
MEMORANDUM AND ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY
JUDGMENT AND DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
FRANCES H. STACY, United States Magistrate Judge.
Before the Court in this social security appeal is Plaintiff1s Motion for Summary
Judgment (Document No. 15), and Memorandum in Support (Document No. 16), and
Defendant's Motion for Summary Judgment (Document No. 17) and Memorandum in Support
(Document No. 18). After considering the cross motions for summary judgment, the
administrative record, and the applicable law, the Magistrate Judge ORDERS, for the reasons set
forth below, that Defendant's Motion for Summary Judgment (Document No. 17) is DENIED,
Plaintiffs Motion for Summary Judgment (Document No. 15) is GRANTED, and the decision of
the Commissioner is REMANDED for further proceedings.
I. ISSUES
Plaintiff, Paul Petticrew, brings this action pursuant to Section 205(g) of the Social
Security Act ("Act"), 42 U.S.c. 405(g), seeking judicial review of a final decision of the
Commissioner of Social Security Administration ("Commissioner") denying his application for
disability benefits. According to Petti crew, substantial evidence does not support the
Commissioner's decision. Specifically, Petticrew claims that the Administrative Law Judge
(ALJ), Thomas Norman, failed to include dizziness into his Residual Functional Capacity (RFC)
finding. Moreover, Petticrew claims that additional evidence submitted to the Appeals Council
diluted the record so that there is a reasonable probability that the ALJ would have made a
different RFC finding that would entitle Petti crew to Social Security disability benefits from
February 11,2011 to December 4, 2012. Petticrew seeks an order reversing the Commissioner's
decision and remanding his claim for further proceedings. The Commissioner responds that there
is substantial evidence in the record to support the ALJ's decision that Petti crew was not
disabled, and that the evidence submitted to the Appeals Council does not sufficiently dilute the
record to justify reversing or remanding Petti crew' s claim.
II. ADMINISTRATIVE PROCEEDINGS
On August 1, 2011, Petti crew applied for disability insurance benefits under Title II of
the Social Security Act. (Tr. 147-48). Petticrew alleged disability beginning on February 10,
2011 as a result of seizures, anxiety, emphysema, lumbar pain and weakness, dizziness, high
cholesterol, and depression. (Tr. 172). The Social Security Administration denied his application
at the initial and reconsideration stages (Tr. 86-87). The ALJ held a hearing on October 25,2012
in Houston Texas. (Tr.18). The ALJ issued his opinion and held that Petti crew was not disabled
from the alleged onset date of February 10, 2011 to the date of the ALJ's opinion, December 4,
2012. (Tr. 29).
Petti crew then sought review by the Appeals Council of the ALJ's adverse decision. (Tr.
1). The Appeals Council will grant a request to review an ALJ's decision if any of the following
2
circumstances are present: (1) it appears that the ALl abused his discretion; (2) the ALl made an
error of law in reaching his conclusion; (3) substantial evidence does not support the ALl's
actions, findings, or conclusions; (4) a broad policy issue may affect the public interest or (S)
there is new and material evidence and the decision is contrary to the weight of all the record
evidence. After considering Petticrew's contentions, including the submission of additional
evidence, in light of the applicable regulations and evidence, the Appeals Council, on June 7,
2013, concluded that there was no basis upon which to grant Petticrew's request for review. (Tr.
1). The ALl's findings and decision thus became final. Petticrew has timely filed his appeal of
the ALl's decision. 42 U.S.C. § 40S(g). This appeal is now ripe for ruling.
III. STANDARD FOR REVIEW OF AGENCY DECISION
The court, in its review of a denial of disability benefits, is, only: "to [determine] (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 (Sth Cir.1999). Title 42, Section 40S(g) limits judicial review of the Commissioner's
decision as follows: "The findings of the Commissioner of Social Security as to any fact, if
supported by substantial evidence, shall be conclusive." 42 U.S.C. § 40S(g). The Act specifically
grants the district court the power to enter judgment, upon the pleadings, and transcript,
"affirming, modifying, or reversing the decision of the Commissioner of Social Security with or
without remanding the case for a rehearing" when not supported by substantial evidence. Id.
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 (Sth 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
3
decision. Chaparo v. Bowen, 815 F.2d 1008, 1009 (5th Cir.1987); see also Jones v. Apfel, 174
F.3d 692, 693 (5th Cir.1999); Cook v. Heckler, 750 F.2d 391 (5th Cir.l985). 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, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971)
(quoting Consolidated Edison Co. v. NL.R.B., 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126
(1938)). Substantial evidence is "more than a scintilla and less than a preponderance." Spellman
v. Shalala, 1 F.3d 357, 360 (5th Cir.l993). 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) (quoting Hemphill v. Weinberger, 483 F.2d 1127
(5th Cir.1973)).
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). 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 twelve
months." 42 U.S.c. § 423(d)(I)(A). The impairment must be proven through medically accepted
clinical and laboratory diagnostic techniques. Id § 423(d)(3). The impairment must be so severe
as to limit the claimant in the following manner:
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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 for work.
Id. § 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
Milan v. Bowen, 782 F.2d 1284 (5th Cir.l986)).
The Commissioner applies a five-step sequential process to determine 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 experience, and residual functional
capacity, he will be found disabled.
Id., 954 F.2d at 293; see also Leggett v. Chater, 67 F.3d 558, 563 n. 2 (5th Cir.l995); Wren v.
Sullivan, 925 F.2d 123, 125 (5th Cir.1991). Under this formula, 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.l999). Once the Commissioner
demonstrates 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
5
P.3d at 563.
In the instant action, the ALJ determined, in his December 4, 2012 decision, that
Petti crew was not disabled at step five because he retained the RFC to engage in unskilled
medium work, and unskilled medium work jobs were found to exist in significant numbers in the
national economy. (Tr. 23, 29). In particular, the ALJ detennined that Petticrew was not
presently working (step one); that Petticrew's symptomatic localization related epilepsy,
temporal bone fracture history, depressive disorder, and polysubstance abuse were severe
impainnents (step two); that Petticrew did not have an impainnent or combination of
impainnents that met or medically equaled one the listed impainnents in Appendix 1 of the
regulations (step three); that Petticrew had the RFC to perfonn medium work; that Petticrew was
unable to perfonn his past relevant work as an electrician (step four); and that Petticrew's
impainnents did not prevent him from perfonning jobs that exist in the national economy, taking
into consideration his age, education, work experience, and RPC to perform medium, unskilled
occupations such as an laundry worker, hand packager, and equipment cleaner (step five). (Tr.
20-29).
V. MEDICAL EVIDENCE AND BACKGROUND INFORMATION
A. AGE, EXPERIENCE, AND WORK HISTORY
At the time of Petticrew' s alleged disability onset date, Petticrew was 55 years old, and is
thus, considered an individual of advanced age. 20 C.P.R. § 416.963(e). Petticrew was an
electrician from 1975 to 2007, and the highest educational level Petticrew has earned is a general
equivalency diploma. (Tr. 28, 160-61).
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B. EVIDENCE BEFORE THE ALJ
On January 22, 2009, Petticrew arrived at the Micheal A. DeBakey V A Medical Center
(VAMC) via ambulance, and complained of stabbing chest pain. (Tr. 481). Petticrew claimed
that the chest pain was made better by "taking a few beers." Id.
On August 2,2009, Petticrew arrived at Memorial Hermann Hospital and claimed that he
had been robbed and assaulted a week earlier, which resulted in a head injury. (Tr. 569). Dr.
Thomas J. Mims, MD, diagnosed Petticrew with left and right-sided temporal skull fractures.
(Tr. 468-69, 569). Petticrew also tested positive for opiates (Tr. 378).
On August 28, 2009, Petticrew complained of right ear pain, ringing in right ear, and loss
of balance, arising from a July 2009 assault. (Tr. 477). He tested positive for alcohol. (Tr. 475).
Petticrew claimed to drink two to three times per week, drinking three to four drinks each time.
ld.
On September 30, 2009, Dr. Karuna Dewan, MD, believed that Petticrew's dizziness
could be due to concussion syndrome. (Tr. 466, 469).
On October 28, 2009, Petti crew was prescribed Meclizine for dizziness, but he stopped
taking the Meclizine because he claimed that it did not work. (Tr. 464). Three days later, the
Houston Fire Department transported Petti crew to the Memorial Hermann Hospital after
Petticrew had a witnessed seizure. (Tr. 580). It was noted that Petticrew did not take any
medications to prevent seizures. Id.
On December 18, 2009, audiologist Ashley Schilling diagnosed Petticrew with a loss of
hearing due to the right temporal bone fracture. (Tr. 291-92, 460). Ten days later, bystanders
found Petticrew unresponsive, and the Houston Fire Department transported Petticrew to
Memorial Hermann Hospital. (Tr. 588, 590). Dr. Cesla diagnosed Petticrew as having a seizure,
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and a contusion of the back of the head. Id. A test revealed C5-C6 intervertebral disc height loss,
vertebral endplate sclerosis, and a probable fracture of the right nasal bone. (Tr. 594). A CT scan
dated December 28, 2009, showed a hypodensity in the right inferior frontal cortex and white
matter. (Tr. 593).
On March 23,2010, an ambulance transported Petticrew to Memorial Hermann Hospital
after Petticrew had a suspected seizure. (Tr. 454). A CT scan showed no hemorrhage or acute
intracranial abnormality. (Tr. 459). The medical report noted that Petticrew was non-compliant
with seizure medication. (Tr. 287). Petticrew denied being dizzy at the time of the visit. (Tr.
457). Two days later, audiologist Ashley Schilling fitted Petticrew with a hearing aid. (Tr. 45152).
On April 6, 2010, Petticrew had a witnessed seizure at a bar, and bystanders noted that he
was not drinking alcohol prior to the seizure. (Tr. 495, 498). An ambulance transported Petticrew
to Memorial Hermann Hospital. Id. Petticrew reported dizziness prior to having the seizure but
denied dizziness when at hospital. (Tr. 498). Petti crew stated that he had not been taking seizure
medications for years. Id. On April 28, 2010, Petticrew reported that his dizziness was getting
better and he denied being dizzy at the time. (Tr. 446-47). During a neurology consult on April
29, 2010, Petti crew reported dizziness with ambulation, auditory hallucinations, and depression.
(Tr.441).
On June 29, 2010, an ambulance transported Petticrew to Memorial Hermann Hospital
after he had a seizure. (Tr. 504). At the primary follow-up appointment, active problems that
were noted in the report included depression, dizziness, seizure disorder, and depression. (Tr.
430). Petticrew denied dizziness in the review of symptoms. Id. The assessment noted
Petticrew's prescription Keppra as causing some dizziness. (Tr. 432). Petticrew claimed to drink
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three to four alcoholic beverages at a time, two-three times a week. (Tr. 435). A PHQ-2 screen
indicated a score of four, which is a positive screen for depression. !d. A CT scan of Petticrew's
brain was unremarkable. (Tr. 511).
On September 2, 2010, resident physician Samish Dhungana noted that Petticrew was not
very compliant with medication and that Petticrew continues to have seizures as a result. (Tr.
427-28). Dhungana also noted dizziness since 2009 head trauma as previous medical history. (Tr.
426). Dr. Chen concurred in Dhungana's assessment. (Tr. 428).
On October 19, 2010, Petti crew had a witnessed epileptic seizure and was treated at
Methodist Sugarland Hospital. (Tr. 228, 238). On October 20,2010, Dr. Muhammad Khan, MD,
diagnosed Petti crew as having a breakthrough seizure, and recommended increasing Petticrew's
dosage of Keppra. (Tr. 238-39). Dr. Khan Faisal conducted an EEG, which showed an
"abnormal EEG showing focal slowing in the right fronto central region with occasional sharps
and spikes ... that may have epileptogenic potential." (Tr. 249).
A CT scan of Petticrew's
cervical spine was negative for acute trauma. (Tr. 243). A CT of Petticrew's brain was
unremarkable. (Tr. 242).
On December 17, 2010, resident physician Sharonda Clark diagnosed Petticrew with
depression disorder not otherwise specified, and noted a Global Assessment of Functioning
(GAF) score of 60. (Tr. 280-81). The report noted that Petticrew drank four to five beers per
week. (Tr. 409). Petticrew reported back pain during this visit. (Tr. 282, 417).
On January 18, 2011, bystanders found Petticrew lying in bushes. (Tr. 520). Petticrew
arrived at the Memorial Hermann Hospital via ambulance with white powder on his nose after
having a seizure. (Tr. 517, 521). Petticrew smelled of alcohol and it was noted that Petticrew had
probable alcohol abuse. (Tr. 518, 521).
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On a February 24, 2011 treatment plan, Dr. Connie Zajicek, MD, noted that Petticrew
would start Zoloft for depression. (Tr. 403). Petticrew also complained of back pain during this
visit. Id. Dr. Zajicek assessed Petticrew as having a GAF score of 55. (Tr. 404).
A psychosocial assessment dated March 10, 2011, noted Petti crew' s history of arrests,
which include two arrests for OWl, one arrest for possession, and six arrests for public
intoxication. (Tr. 389). Petticrew claimed that he "drinks six/packs [of alcohol] a week." (Tr.
394).
On March 14, 2011, staff psychiatrist Jocelyn Ulanday diagnosed Petti crew as having
depression not otherwise specified and noted that a medical doctor would prescribe medication
to alleviate depression. (Tr. 371, 385). Noted medical problems included dizziness, fracture,
depression, and seizure disorder. (Tr. 371). Petticrew also claimed that he had auditory
hallucinations. (Tr. 379). Dr. Ulanday included depression and substance abuse to be included as
problems to be listed on Petticrew's master treatment plan. (Tr. 384-85). Petticrew's GAF score
was estimated at 50. (Tr. 384).
From May 16,2011 to May 20,2011, Petti crew was admitted to the VACM because of
seizure-like activity. (Tr. 260). Dr. David Chen, MD, noted that poor medical compliance likely
caused high seizure frequency. (Tr. 305). Petticrew also claimed to have had at least five
emergency room visits due to seizures, but records at the time only showed two visits over
previous two years. Id. Nonetheless, the record indicates that Petti crew visited Memorial
Hermann Hospital due to seizures at least six times in the two years preceding this visit. (Tr. 454,
495, 498, 504, 517, 521, 580, 588, 591). Symptomatic localization-related epilepsy was the
suspected diagnosis. (Tr. 260, 305). A V-EEG showed intermittent right temporal focal slowing,
and occasional right mid-temporal spikes. (Tr. 267). Dr. Chen noted that Petticrew reported
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being seizure free for over twenty years while taking Tegretol. (Tr. 309). Nurse practitioner
Romay Franks noted depression and drinking six packs a week as psycho-social morbidities. (Tr.
307). On the discharge instructions, Dr. Chen noted that "AS TOLERATED (no limitations in
weight bearing, lifting, mobility, driving, bathing, sexual activity, and can return to work)." (Tr.
314).
On June 4, 2011, Petticrew called VAMC complaining of having a seizure, and of having
lower back pain. (Tr. 301, 303). Petticrew was advised to go to the VAMC emergency room, but
there is no indication did so. (Tr. 301).
On June 12,2011, Petti crew suffered a left temporal lobe hemorrhage after he fell from a
bar stool, and was brought to Memorial Hermann Hospital by ambulance. (Tr. 528, 539).
Petticrew suffered a seizure, but it is unclear if the seizure caused him to fall off the stool. (Tr.
534). Petti crew was intoxicated, so he was unable to provide an accurate history of the event.
(Tr. 534-35). Dr. Giao Quynh Duong diagnosed Petticrew with an intracranial hemorrhage, and
noted Petticrew as an alcohol abuser (blood studies revealed an elevated alcohol level). (Tr. 526,
530). Petticrew reported drinking three to four beers a day for years. (Tr. 534). A CT scan
revealed a large focal area of hemorrhage involving the left temporoparietal region with edema.
(Tr.541).
On July 16, 2011, Petticrew was found unconscious at a bar, and an ambulance
transferred him to Memorial Hermann Hospital. (Tr. 544). The clinical impression was alcohol
intoxication. (Tr. 545). The report indicated that Peticrew was "inebriated [and] smell [ed]
heavily ofETOH." (Tr. 544).
On August 20, 2011, Petticrew crashed a vehicle after having a seizure, and an
ambulance transferred him to the Memorial Hermann Hospital. (Tr. 557-59).
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On August 30, 2011, Dr. Richard Campa, Ph.D, conducted a Social Security
Administration psychiatric review analyzing the time period of February 10,2011, to August 30,
2011. (Tr. 595). Dr. Campa found Petticrew to suffer from depression and alcohol dependence,
but found that there was insufficient evidence to make a decision regarding functional
limitations. (Tr. 598, 603, 605).
On September 1, 2011, Petticrew complained of having baseline dizziness "all the time"
to the attending nurse practitioner. (Tr. 676). The next day, Petticrew was found in a park
suspected of having a seizure, and had a seizure in the ambulance on the way to the Memorial
Herman Hospital. (Tr. 656). He was postictal when admitted to the emergency room. Id. The
treating physician believed that Petti crew probably experienced a multifactorial seizure resulting
from alcohol withdrawal (no alcohol detected in system), as well as sUbtherapeutic Dilantin
level. (Tr. 657). Dr. Calvin Tsao noted that Petticrew suffered from degenerative spondylosis at
C5-C6 level of the cervical spine. (Tr. 660).
On September 22, 2011, Dr. Randal Reid, MD, completed a physical RFC assessment.
(Tr. 663). Dr. Reid noted that Petticrew had a history of non-compliance with seizure
medications, and that Petti crew denied having back pain. (Tr. 670). Dr. Reid also noted that
Petticrew should never climb ladders, ropes, or scaffolds, only occasionally climb ramps or
stairs, and to avoid all exposure to workplace hazards. (Tr. 665, 667). Dr. Reid did not limit
balancing, stooping, kneeling, crouching, or crawling. (Tr. 665).
On December 13, 2011, Dr. Lonnecker completed a psychological evaluation for use by
the Social Security Administration. (Tr. 682-690). Dr. Lonnecker found that Petticrew had low
average intelligence, and a GAF score of 60. (Tr. 685, 689). Dr. Lonnecker also diagnosed
Petticrew with a depressive disorder not otherwise specified, and polysubstance abuse. (Tr. 688).
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In the evaluation, Petticrew stated that he picks up cans during the day to get change for food.
(Tr. 683).
On January 11, 2012, Dr. Marler, Ph.D, completed a psychiatric review for use by the
Social Security Administration, and analyzed the period of February 10, 2011 through January
11, 2012. (Tr. 692). Dr. Marler found depressive disorder not otherwise specified, and alcohol,
cocaine, and cannabis abuse as medically determinable impairments. (Tr. 695, 700). Dr. Marler
also found that Petticrew's functional limitations included mild restriction of activities of daily
living, mild difficulties in maintaining social functioning, moderate difficulties in maintaining
concentration, persistence and pace, but he did not find any episodes of decompensation of
extended duration. (Tr. 702).
On January 18, 2012, Dr. Marler, Ph.D, completed a Mental RFC assessment of
Petticrew and noted that Petticrew "can understand, remember and carry out only simple
instructions, make simple deductions, attend and concentrate for extended periods, interact
adequately with supervisors and coworkers and respond appropriately to changes in a routine
work setting." (Tr. 708).
On a June 15, 2012 radiology report, Dr. Joan Bitar, MD, noted that Petticrew had mild
loss of height of several mid-thoracic vertebral bodies with resulting mild kyphosis. (Tr. 794).
On a July 9, 2012, nurse practitioner Romay Franks noted that Petticrew stated that he
only took his medications "if [he] remember[s]." (Tr. 781). Petticrew complained of back pain,
and baseline dizziness. (Tr. 781, 784).
C. ADDITIONAL EVIDENCE SUBMITTED TO THE APPEALS COUNCIL
Petticrew submitted additional medical evidence to the Appeals Council that was not
before the ALJ. The Appeals Council ultimately denied Petticrew's request for review because
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the new evidence was not "contrary to the weight of the evidence of record." (Tr. 1-2). The
following is a summary of the additional evidence submitted to the Appeals Council.
On July 2, 2008, Petticrew went to the VAMC and complained of being beaten up in a
bar and being kicked in his face. (Tr. 830). Petticrew complained that he may have injured his
lower back, and that his nose may have been broken. Id. A spine x-ray showed "chronic ant
displacement." Id. On the radiology report, Dr. Umair Shah's findings were "anterolisthesis of
L5 on S1 is identified by 1.6cm. Intervertebral disc space narrowing, sclerosis, and endplate
changes are noted at LS-S 1 consistent with degenerative change. Diffuse atherosclerotic
calcifications are noted throughout the descending aorta." (Tr. 838). Dr. Shah's impression was
"anterolisthesis ofLS on SI by 1.6cm with spondylosis" with "no acute abnormality." Id.
On an April 28, 2008 radiology report, Dr. Kelly Thomas noted "mild loss of height of
midthoracic vertebra with kyphoscoliosis." (Tr. 860). The ALJ had medical evidence of mild loss
of height, but no medical evidence regarding kyphoscoliosis.
On a January 11, 2013 radiology report, Dr. Samara Martinez's impression included
degenerative disc disease. (Tr. 924). Dr. Martinez also instructed the reader of the report to
"please tell [Petticrew] he has arthritis of the back ... [and a] pinched nerve in the back." (Tr. 91718).
On a February IS, 2013 radiology report, Dr. Tae Kim recommended a neurosurgical
consultation after finding "Grade 2 anterolisthesis of LS on S 1. Complete loss of intervertebral
disk space at L5-Sl. .. [and] LS on SI-related severe foraminal stenosis." (Tr. 896-97). On
February 22, 2013, a neurosurgery consult request was entered. (Tr. 885). The reason for the
referral and/or chief complaint was "bilateral pars defects at L5 with grade 2 anterolisthesis of
L5 on Sl. No spinal stenosis. LS on SI-related severe foraminal stenosis (near-effacement)." Id.
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VI. THE ALJ DID NOT ERR WHEN HE DISCOUNTED PETTICREW'S
STATEMENTS CONCERNING THE INTENSITY, PERSISTENCE, AND LIMITING
EFFECTS OF DIZZINESS BECAUSE HE PROPERLY FOUND PETTI CREW AS NOT
WHOLLY CREDIBLE.
Petticrew contends that the RFC finding does not take into account limitations based on
his dizziness. A RFC finding is defined as the most that someone can do despite recognized
limitations. 20 CFR § 404.1545(a)(1). The RFC should be based on all of the relevant
information in the case record. 20 CFR § 404.1545(a)(3). The Court holds that there is
substantial evidence that the ALl accounted for Petticrew's dizziness when formulating his RFC,
and that the ALl properly discounted Petticrew's dizziness claim based on Petticrew's lack of
credibility and lack of compliance with seizure medication. The ALl determined that Petticrew
"has no neurological deficits, no orthopedic abnormalities, and no dysfunctioning of the bodily
organs that would preclude medium work," and that the "claimant's statements concerning the
intensity, persistence, and limiting effects of these symptoms are not credible to the extent that
they are inconsistent with the above residual functional capacity assessment." (Tr. 24).
Credibility determinations, such as that made by the ALl in this case in connection with
Petticrew's subjective complaints, are generally within the province of the ALl to make. See
Greenspan v. Shalala, 38 F.3d 232, 237 (5th Cir.1994) ("In sum, the ALl 'is entitled to
determine the credibility of medical experts as well as lay witnesses and weigh their opinions
accordingly.' ") (quoting Scott v. Heckler, 770 F .2d 482, 485 (5th Cir .1985)), cert. denied, 514
u.s. 1120 (1995).
The ALl considered Petti crew' s non-compliance with his medication in determining his
credibility. (Tr. 25). For instance, the ALl noted that an examination on May 23, 2011 revealed
Petticrew had "poor medication compliance," despite a "history of a good response from
Tegretol." !d. A claimant's non-compliance with treatment is a proper factor for the ALl to
15
consider in assessing credibility. Villa v. Sullivan, 895 F.2d 1019, 1024 (5th Cir.1990). This
factor weighs in favor of the ALl.
1
Objective medical evidence also supports the ALl's RFC finding regarding Petticrew's
dizziness claim. Specifically, the ALl notes on September 22, 2011, Randall Reid, MD,
"reviewed the claimant's medical records and completed a physical residual functional capacity
assessment form concerning the claimant." (Tr. 27). "Dr. Reid reported that the claimant did not
have any established exertional limitations ... [except that] the claimant had to take seizure
precautions." Id.
Furthermore, the ALl specifically considered Petticrew's claim of dizziness. (Tr. 23).
The ALl noted that Petti crew testified that he had dizziness and drowsiness that could occur
once a day, and that he would have to sleep for thirty minutes to two hours as a result. Id. The
All indicated that Petti crew "must take the usual seizure precautions of avoiding unprotected
heights or climbing ladders, ropes, and scaffolds." Id. The ALJ also indicated that the "claimant
must avoid moving or dangerous equipment and open flames ... [as well as] commercial
driving." Id. These precautions could be due to his epilepsy, but they could also be partially due
to his claims of dizziness. As such, whether the ALJ specifically noted that some of the listed
precautions account for Petticrew's dizziness, the precautions would have most likely been the
same.
The ALl properly considered the evidence of record and provided a well-reasoned
1 The ALl additionally noted in his decision that Petticrew over reported seizures: "while he
reported five emergency room visits, the investigation showed only two emergency room visits
(Exhibit B-2F, page 51)." (Tr. 25). This statement does not appear to be supported by the record
given the sheer number of times Petticrew was transported by ambulance to the Memorial
Herman Hospital emergency room, as set forth above. Because the case should be remanded for
full consideration of additional evidence, see infra at 17-20, and because Petti crew did not raise
this issue in his motion for summary judgment, it will not be used as an independent basis for
remand.
16
analysis in support of his credibility finding. In disputing this assessment, Petticrew requests the
Court to reweigh the evidence, retry the issues, and substitute its own judgment for that of the
ALl, which it is not permitted to do. Greenspan, 38 F.3d at 236. The Court finds that substantial
evidence supports the ALl's credibility assessment regarding Petticrew's dizziness claim as it
relates to his RFC.
VII. SUBSTANTIAL EVIDENCE DOES NOT SUPPORT THE COMMISSIONER'S
UNF AVORABLE DECISION BECAUSE ADDITIONAL EVIDENCE SUBMITTED BY
PETTI CREW AFTER THE ALJ'S DECISION SUFFICIENTL Y DILUTES THE
RECORD.
Petti crew submitted additional evidence to the Appeals Council after the ALl issued his
decision denying Petticrew's application for disability benefits. According to Petticrew, the
Commissioner's decision is not supported by substantial evidence because the evidence
submitted to the Appeals Council dilutes the record to the extent that there is a reasonable
probability that the ALl would have changed his decision in light of the additional evidence.
Having reviewed that additional evidence in the context of the evidence that was considered by
the ALl, the Court agrees.
Under Fifth Circuit precedent, "evidence submitted for the first time to the Appeals
Council is part of the record on appeal [.] Higginbotham v. Barnhart, 405 F.3d 332, 337 (5th
Cir.2005). Therefore, when a claimant such as Petticrew submits new evidence and the Appeals
Council denies review after considering the evidence, "the Commissioner's final decision
necessarily includes the Appeal Council's conclusion that the ALl's findings remained correct
despite the new evidence." Id at 336 (internal quotation marks and citations omitted). The
Appeals Council is not, however, required to provide a detailed analysis of, or otherwise explain
the weight to be given, to new evidence. See Higginbotham, 405 F.3d at 335 n. 1. Remand is
warranted only if the new evidence dilutes the record to such an extent that the ALl's decision
17
becomes insufficiently supported. Higginbotham v. Barnhart, 163 F.App'x 279, 281-82 (5th
Cir.2006) (emphasis added).
Specifically, Petticrew argues that his RFC determination should have limited him to light
or sedentary work, rather than medium work. A RFC finding of light or sedentary work would
require the Commissioner to find Petticrew disabled under the medical-vocational guidelines.
See 20 C.F.R. Pt. 404, Subpt. P, App. 2, §§ 202.07,202.06. The Social Security Administration's
table of medical-vocational guidelines requires the agency to find a claimant disabled if the
claimant is of advanced age (over the age of 55), has at least a high school education, and has
previously held a skilled or semi-skilled job that he can no longer perform, unless he has job
skills that are transferrable. Id. Because the ALJ found that Petticrew could do medium work, he
did not evaluate transferability of job skills. (Tr. 28). Light work:
involves lifting no more than 20 pounds at a time with frequent lifting or carrying
of objects weighing up to 10 pounds. Even though the weight lifted may be very
little, a job is in this category when it requires a good deal of walking or standing,
or when it involves sitting most of the time with some pushing and pulling of arm
or leg controls. To be considered capable of performing a full or wide range of light
work, you must have the ability to do substantially all of these activities.
20 C.F.R. § 404.1 567(b). Medium work "involves lifting no more than 50 pounds at a time with
frequent lifting or carrying of objects weighing up to 25 pounds." 20 C.F .R. § 404.1567(c).
In evaluating the materiality of the additional evidence submitted to the Appeals Council,
the Court must address "( 1) whether the evidence relates to the time period for which the
disability benefits were denied, and (2) whether there is a reasonable probability that this new
evidence would change the outcome of the Secretary's decision." Ripley v. Chater. 67 F.3d 552,
555 (5th Cir.l995). Both criteria are satisiied here.
All of the evidence submitted to the Appeals Council relates back to the relevant time
period of February 10, 2011 to December 4, 2012, and is material to Petticrew's RFC
18
determination. On July 8, 2008, Dr. Umair Shah's found that Petticrew had "anterolisthesis of LS
on S 1 is identified by 1.6cm. Intervertebral disc space narrowing, sclerosis, and endplate changes
are noted at LS-S 1 consistent with degenerative change. Diffuse atherosclerotic calcifications are
noted throughout the descending aorta." (Tr. 838). Dr. Shah's impression was "anterolisthesis of
LS on SI by 1.6cm with spondylosis" with "no acute abnormality." Id. A spine x-ray also
showed "chronic ant displacement." (Tr. 830). Moreover, on an April 28, 2008 radiology report,
Dr. Kelly Thomas noted that Petticrew has "kyphoscoliosis." (Tr. 860). This evidence relates
back to the relevant time period because it predates the alleged onset date of February 11,2011.
The evidence dated from 2013 also relates back to the relevant time period. The
additional evidence is dated just a couple months after the ALJ made his decision, so the
conditions listed in the additional evidence likely existed during the relevant period and are not
just signs of subsequent deterioration of a previously non-disabling condition. See Falco v.
Shalala, 27 F.3d 160, 164 (Sth Cir.1994). Moreover, some of the February 2013 evidence seem
to confirm Dr. Shah's findings of 2008, and is therefore sufficiently related to the relevant time
period. Concededly, it is unclear whether Petticrew had the following conditions during the
relevant time period: (1) grade 2 anterolisthesis (no grade identified in 2008 evidence), (2)
severe foraminal stenosis, (3) degenerative disc disease, (4) pinched nerve, or (S) arthritis of the
back. Medical experts should opine as to whether Petticrew had these conditions during the
relevant time period.
In any event, the 2008 evidence standing alone sufficiently dilutes the record because
there is a reasonable probability that this evidence would have affected the outcome of the
Commissioner's decision. In finding that Petticrew was not disabled, the ALJ rejected
Petticrew's subjective complaints of back pain presumably because there was no objective
19
medical evidence to validate his complaints. The ALJ is prohibited from making a finding of
disability unless the subjective complaints of pain are backed by objective medical evidence. 42
U.S.C. § 423(5)(A). Had the ALJ considered the additional evidence Petti crew submitted to the
Appeals Council, he could have found that Petticrew was only capable of performing light or
sedentary work, which would require the ALJ to find Petti crew disabled, so long as Petti crew
had no transferable job skills. See 20 C.F.R. Pt. 404, Subpt. P, App. 2, §§ 202.07, 202.06. With
the additional evidence, the ALJ may have included back pain as a severe impairment, and may
have lowered Petti crew' s RFC to light work as a result.
VIII. CONCLUSION
Based on the foregoing, and the conclusion that substantial evidence does not support the
Commissioner's decision given the additional evidence submitted to the Appeals Council, the
Court
ORDERS that Defendant's Motion for Summary Judgment (Document No. 17) is
DENIED, Plaintiff's Motion for Summary Judgment (Document No. 15) is GRANTED, and that
this case is remanded to the Social Security Administration pursuant to 42 U.S.C. § 405(g), for
further proceedings consistent with this Memorandum and Order.
Signed at Houston, Texas, this
;2--~y of June, 2014.
~fc:-~
UNITED STATES MAGISTRATE JUDGE
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