Akah v. Colvin
Filing
16
MEMORANDUM OPINION: granting 11 Cross MOTION for Summary Judgment , denying 12 MOTION for Summary Judgment (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
JOSEPHINE N. AKAH,
Plaintiff,
v.
CAROLYN COLVIN, ACTING
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,
Defendant.
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§
§
§
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Civil Action No. H-13-2415
MEMORANDUM OPINION
Pending before the court1 are Defendant’s Cross-Motion for
Summary Judgment (Doc. 11) and Plaintiff’s Motion for Summary
Judgment (Doc. 12).
The court has considered the motions, the
responses, the administrative record and the applicable law.
For
the reasons set forth below, the court GRANTS Defendant’s CrossMotion for Summary Judgment and DENIES Plaintiff’s Motion for
Summary Judgment.
I.
Case Background
Plaintiff filed this action pursuant to 42 U.S.C. § 405(g) and
for judicial review of an unfavorable decision by the Commissioner
of
the
Social
Security
Administration
(“Commissioner”
or
“Defendant”) regarding Plaintiff’s claims for disability benefits
under Title II of the Social Security Act (“the Act”).
1
The parties consented to proceed before the undersigned magistrate
judge pursuant to 28 U.S.C. 636(c). Docs. 8, 9 & 10.
A.
Procedural History
Plaintiff was born on August 27, 1957, and was forty-nine years
old at the alleged onset of her disability.2
She has a high school
diploma and past employment as a gas station cashier and certified
nurse’s aide.3
Plaintiff applied for disability insurance benefits on April
14, 2011, claiming an inability to work based on back and knee pain
and high blood pressure.4
In her application, Plaintiff indicated
that she became unable to work due to her disability on March 27,
2007.5
Her eligibility for disability benefits expired on December
31, 2007, thus the court’s review concerns the period March 27,
2007, through December 31, 2007, (“the relevant period”).
The claim was initially denied on May 25, 2011, and later on
reconsideration on July 6, 2011.6
Plaintiff requested a hearing
before an administrative law judge (“ALJ”).7 The hearing before the
ALJ was held on February 9, 2012 in Houston.8
2
Tr. of the Admin. Proceedings (“Tr.”) 141.
3
Tr. 156.
4
Tr. 141, 155. According to the ALJ, a March 2007 application for
disability was denied on September 19, 2007, but not appealed. Tr. 30. The
present application uses a last-date-worked of March 27, 2007, because an ALJ
denied another application for disability benefits on March 26, 2007. Id.
5
Tr. 155. In fact, Plaintiff has not worked since 2002 when she
suffered an on-the-job injury while working as a nurse’s aide. Tr. 37.
6
Tr. 71-75, 77-79.
7
Tr. 81.
8
Tr. 22.
2
B.
Medical History
There are scant medical records in the administrative record.
According to Plaintiff’s attorney, medical records from both Bobby
Pervez, M.D., (“Dr. Pervez”) and James Ghadially, M.D., (“Dr.
Ghadially”) were destroyed by Hurricane Ike flooding and are no
longer
available.9
The relevance of these lost documents is
questionable as the record suggests that Plaintiff saw Dr. Pervez
in 2004 and Dr. Ghadially from 2003 to 2005.10
After the hearing
before the ALJ, Plaintiff submitted records documenting a 2003
radiology report and treatment by a chiropractor in 2006.11
Those
records show the following.
On
August
27,
2003,
Plaintiff
underwent
a
computerized
tomography (“CT”) scan of her lumbar spine after complaining of
lower back pain to Dr. Ghadially.12
The radiologist found that
there was no herniation or remarkable foraminal narrowing at L1-2
or L2-3.13
There was mild bilateral foraminal narrowing and a
three-millimeter mild posterior protrusion at L3-4.14
At L4-5,
there was a “broad-based posterior protrusion, mild central canal
9
Tr. 25-29, 133.
10
Tr. 159-60, 227-28.
11
Tr. 226.
12
Tr. 228.
13
Id.
14
Id.
3
stenosis, and moderate bilateral foraminal narrowing.”15
The L-5
nerve root sleeves were noted to be amputated bilaterally, and the
S1 nerve root sleeves were unfilled bilaterally.16 There was marked
bilateral foraminal narrowing with compression of the L5 nerve root
sleeves/dorsal root ganglia, bilaterally.17
Plaintiff was treated at the Elite Chiropractic and Rehab
Health Clinic by Kunle Adeyinka, D.C., (“Dr. Adeyinka”) between June
and December 2006.18
The records reflect that Plaintiff complained
of constant lower back pain during her first three visits to Dr.
Adeyinka,19 but, by mid-July, reported feeling “slightly better”
with an increased range of motion.20
At the end of July 2006, Plaintiff reported burning, tingling
pain on her left side and pain in her lower back.21
Plaintiff
continued to report moderate-to-severe pain that increased with
prolonged standing in late July.22
On August 21, 2006, Plaintiff
stated that she felt better than her last visit.23
15
Id.
16
Id.
17
Id.
18
Tr. 229.
19
Tr. 252-54.
20
Tr. 251.
21
Tr. 250.
22
Tr. 249.
23
Tr. 246.
4
By late August,
Plaintiff reported that her pain was “intermittent” but increased
with any type of bending.24
On September 13, 2006, Plaintiff stated
that she “continue[d] to feel better after each treatment.25
On
September 21, 2006, Plaintiff noted improvement in her back pain.26
Two months passed with no chiropractic treatment, but on
November 20, 2006, Plaintiff returned to Dr. Adeyinka, complaining
of increased pain in her lumbar spine.27
On December 4, 2006,
Plaintiff stated that she obtained some relief from the treatment
the week before but that the pain had returned.28
On December 7, 2006, Dr. Adeyinka completed a form for the
Texas Department of Insurance, Division of Workers’ Compensation
that
stated
that
Plaintiff’s
“injury
is
not
pre-existing
and
degenerative in origin but caused by a fracture which she sustained
when trying to catch the patient from falling.”29
Plaintiff returned to Dr. Adeyinka on December 8, 2006, and
reported that her back pain was better but that she was suffering
from right knee pain.30
24
Tr. 245.
25
Tr. 243.
26
Tr. 242.
27
Tr. 241.
28
Tr. 239.
29
Tr. 237.
30
On December 12, 15, and 18, 2006, Plaintiff
Tr. 235.
5
reported back and knee pain.31
On December 22, 2006, Plaintiff
stated that the pain was “slightly relieved.”32
She did not seek
chiropractic treatment after that date.
Plaintiff saw no treating physician during the relevant period
but did submit to a consultative examination in September 2007.
On
September 5, 2007, Daryl Daniel, M.D., (“Dr. Daniel”) conducted a
consultative examination of Plaintiff in connection with her claim
for disability benefits.33
Dr. Daniel reported that Plaintiff was
five feet, two inches tall and weighed 257 pounds.34
He observed
that Plaintiff had a methodical gait and difficulty rising from a
seated position and sitting from a supine position.35
Plaintiff
voiced pain in her right knee upon movement, but Dr. Daniel noted
no
effusion,
bony
or
tissue
destruction,
instability, redness or swelling.36
crepitance,
joint
Plaintiff had normal finger
control and dexterous control with no evidence of atrophy.37
Dr. Daniel found no evidence of pathological curvatures, spasm
or misalignment of Plaintiff’s back.38
31
Tr. 232-34.
32
Tr. 231.
33
Tr. 203.
34
Tr. 204.
35
Id.
36
Id.
37
Id.
38
Id.
6
Dr. Daniel commented that
Plaintiff had “evidence of back pain likely as a result of the disc
disease seen on the radiographic studies” which would cause “a poor
quality of life” and “some occasional incapacity.”39 He recommended
that Plaintiff use a cane when standing more than thirty minutes,
that she walk, stand, bend, stoop or squat in short periods of time,
and that she not lift more than fifteen pounds.40
In
connection
with
Dr.
underwent a lumbar x-ray.41
Daniel’s
examination,
Plaintiff
The radiologist found osteophytes at
multiple levels, a grade I spondylolisthesis at L5-S1, approximately
eight to nine millimeters, and narrowing of the interspace at that
level.42
The remaining vertebral interspaces appeared normal.43
On September 17, 2007, James Wright, M.D., (“Dr. Wright”)
completed a Physical Residual Functional Capacity (“RFC”) Assessment
based
on
Dr.
Daniel’s
examination.44
Dr.
Wright
found
that
Plaintiff was able to occasionally lift twenty pounds, frequently
lift ten pounds, stand and/or walk for about six hours in an eighthour workday and sit for about six hours in an eight-hour workday.45
39
Id.
40
Id.
41
Tr. 205.
42
Id.
43
Id.
44
Tr. 218-25.
45
Tr. 219.
7
Dr. Wright stated that Plaintiff’s claimed limitations were not
wholly supported by the records.46
On November 26, 2007, Frederick Cremona, M.D., (“Dr. Cremona”)
reviewed
Dr.
reported
Wright’s
that
Dr.
Physical
Wright’s
RFC
assessment.47
assessment
correctly
Dr.
Cremona
noted
pain
associated with full flexion and extension of the right knee but
also showed that Plaintiff could bend to eighty degrees.48
Dr.
Cremona concurred with Dr. Wright’s opinion that Plaintiff retained
a light RFC.49
On June 29, 2011, John Durfor, M.D., (“Dr. Durfor”) completed
a Physical RFC Assessment after review of the August 2003 myelogram,
Dr. Daniel’s report and the September 2007 x-ray of Plantiff’s
lumbar spine.50
Consistent with Dr. Wright’s opinion, Dr. Durfor
found that Plaintiff was able to occasionally lift twenty pounds,
frequently lift ten pounds, stand and/or walk for about six hours
in an eight-hour workday and sit for about six hours in an eighthour workday.51
He stated that the alleged severity and limiting
effects of Plaintiff’s impairments were not fully supported by his
46
Tr. 223.
47
Tr. 207.
48
Id.
49
Id.
50
Tr. 217.
51
Id.
8
examination of the records.52
C.
Hearing Testimony
On February 9, 2012, a hearing was held before an ALJ in
Houston.53
Plaintiff
and
Rosalind
(“VE”), testified at the hearing.54
Lloyd,
a
vocational
expert
Plaintiff was represented by
counsel at the hearing.55
Plaintiff explained that she did not seek medical treatment
during the relevant period through the present because she had no
insurance and her husband would not support her financially, other
than to provide her a residence.56
She testified that she was
unable to obtain assistance as an indigent because her husband
refused to provide her with proof of his income.57
Plaintiff testified that from 1990 to 2000, she worked as a
cashier at a gas station.58
Plaintiff was employed between 2000 and
2002 as a nurse’s aide.59
Although Plaintiff stated that she had
not worked since 2002, she admitted that she had supplemented her
52
Tr. 215.
53
Tr. 24.
54
Id.
55
Id.
56
Tr. 47.
57
Tr. 49.
58
Tr. 39.
59
Tr. 39-40.
9
income since that time by selling home-cooked food.60
She estimated
that she worked approximately five hours a day cooking food.61
Plaintiff worked as a babysitter after 2002, but stated that she
stopped that employment because stooping and bending exacerbated her
back pain.62
Plaintiff explained that she suffered from back pain that
required her to sit for twenty to thirty minutes at a time.63
On
other occasions, standing or walking relieved the back pain, but
over-the-counter medication did not.64 Plaintiff also reported that
she had suffered from knee pain for the past three years.65
Plaintiff testified that she had been obese for years, including
during the relevant time period.66
Plaintiff stated that she was able to do laundry and wash
dishes but not sweep.67
She reported a consistent pattern where she
would have two consecutive bad days, followed by three good days.68
The VE testified that Plaintiff’s employment at the gas station
60
Tr. 43.
61
Id.
62
Tr. 53.
63
Tr. 50.
64
Tr. 55.
65
Tr. 50, 52.
66
Tr. 36, 51.
67
Tr. 56.
68
Tr. 57.
10
was better characterized as “cashier, convenience store” and was
light, unskilled work.69 Plaintiff employment as a nurse’s aide was
medium, semi-skilled work, according to the VE.70
The VE testified
that Plaintiff’s skills would transfer to a number of sedentary jobs
and that Plaintiff had the RFC to be a sedentary unskilled worker,
a document proofreader, and a call-out operator.71
The VE stated that if Plaintiff were required to take two or
more additional breaks per day due to discomfort, she would be
precluded from full-time employment.72
D.
ALJ’s Decision
On May 22, 2012, the ALJ issued an unfavorable decision.73
The
ALJ found that Plaintiff was insured through December 31, 2007, and,
therefore, had to establish that she was disabled on or before that
date to qualify for disability benefits.74
The ALJ found that
Plaintiff had not engaged in substantial gainful activity during the
relevant period.75
The ALJ next determined that Plaintiff had the
medically determinable impairments of degenerative disc disease of
69
Tr. 41.
70
Tr. 42.
71
Tr. 60.
72
Tr. 59-60.
73
Tr. 11-17.
74
Tr. 11.
75
Tr. 13.
11
the lumbar spine, grade 1 spondylolithesis, bilateral knee pain,
obesity and hypertension.76
The ALJ found that none of these
impairments, either singly or in combination, significantly limited
Plaintiff’s ability to perform work-related activities for twelve
consecutive months.77
Thus, the ALJ disposed of the case at step
two of the disability analysis.
In support of his opinion, the ALJ found that the record
contained no evidence of medical treatment during the relevant
period.78
Also, he noted there was little evidence of medical
treatment prior to the alleged onset date; the only evidence being
a 2003 CT scan and chiropractic manipulations of the lower back over
a six-month period in 2006.79
The ALJ discussed the consultative examination by Dr. Daniel
in
September
2007
wherein
Dr.
Daniel
recorded
that
Plaintiff
complained of lower back pain, had not had back surgery and had
received no back injections since 2002.80
Dr. Daniel found that
Plaintiff did not need an assistive device and was able to perform
most activities of daily living, including cooking, cleaning,
76
Tr. 13.
77
Id.
78
Tr. 15.
79
Id.
80
Tr. 16.
12
grocery shopping and laundry.81
The ALJ credited Dr. Daniel’s
report that Plaintiff was able to bend to eighty degrees, had full
range of motion in her upper and lower extremities, with a report
of pain associated with full flexion/extension of the right leg and
no sensory, motor or reflex loss.82
the
ALJ
determined
that
Based on Dr. Daniel’s findings,
Plaintiff
exhibited
no
respiratory,
cardiovascular, musculoskeletal or neurological deficits associated
with obesity.83
Although Dr. Daniel opined that Plaintiff’s disc disease caused
her a “poor quality of life,” “occasional incapacity,” and limited
Plaintiff to lifting no more than fifteen pounds and walking,
standing, stooping, sitting and bending for short periods of time,
the ALJ found that these opinions were not supported by the
objective medical findings of the consultative examination.84
It
was also significant to the ALJ that, while Plaintiff ambulated
slowly, she did not require the use of an assistive device and that
Dr.
Cremona,
upon
reviewing
Dr.
Daniel’s
report,
found
that
Plaintiff was able to work at the light level of exertion.85
The ALJ discounted the 2011 opinions of two medical consultants
81
Id.
82
Id.
83
Id.
84
Tr. 16-17.
85
Tr. 17.
13
because they were not based on objective evidence related to the
relevant period.86
The ALJ concluded that Plaintiff was not under
a disability through the date last insured, December 31, 2007.87
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.
A.
Waters v. Barnhart, 276 F.3d 716, 718 (5th Cir. 2002).
Legal Standard
In order to obtain disability benefits, a claimant bears the
ultimate burden of proving she is disabled within the meaning of the
Wren v. Sullivan, 925 F.2d 123, 125 (5th Cir. 1991).
Act.
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
86
Id.
87
Id.
14
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 she has a “severe
impairment;” (3) a claimant whose impairment meets or is
equivalent to an impairment listed in Appendix 1 of the
regulations will be considered disabled without the need
to consider vocational factors; (4) a claimant who is
capable of performing work that she has done in the past
must be found “not disabled;” and (5) if the claimant is
unable to perform her previous work as a result of her
impairment, then factors such as her age, education, past
work experience, and [RFC] must be considered to
determine whether she can do other work.
Bowling v. Shalala, 36 F.3d 431, 435 (5th Cir. 1994); see also 20
C.F.R. § 404.1520.
By judicial practice, the claimant bears the
burden of proof on the first four of the above steps, while the
Commissioner bears it on the fifth. Crowley v. Apfel, 197 F.3d 194,
198 (5th Cir. 1999).
If the Commissioner satisfies her step-five
burden of proof, the burden shifts back to the claimant to prove she
cannot perform the work suggested.
789 (5th Cir. 1991).
Muse v. Sullivan, 925 F.2d 785,
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
15
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.” Carey v. Apfel, 230
F.3d 131, 135 (5th Cir. 2000).
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.
Johnson v. Bowen, 864 F.2d 340, 343-44 (5th Cir.
1988). 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
Commissioner’s judgment.
Cir. 1999).
the
court’s
judgment
for
the
Brown v. Apfel, 192 F.3d 492, 496 (5th
In other words, the court is to defer to the decision
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, specifically arguing that the ALJ: (1)
erred in finding that Plaintiff’s degenerative disc disease of the
16
lumbar spine was not “severe” at Step Two; (2) violated Social
Security Ruling (“SSR”) 96-6p by not obtaining an updated medical
expert opinion on medical equivalence; (3) failed to properly
develop the case; (4) failed to consult with a medical expert in
interpreting
Plaintiff’s
the
medical
non-exertional
evidence;
(5)
impairments;
failed
and
(6)
to
consider
improperly
substituted his own opinions for that of a medical expert.
Defendant argues that the ALJ’s decision is legally sound and
is supported by substantial evidence.
A.
The ALJ’s Step-Two Analysis
Plaintiff complains that the ALJ erred at step two of the
Bowling analysis by failing to find Plaintiff’s degenerative lumber
disc disease, grade 1 spondylolisthesis, knee pain, obesity, and
hypertension to be “severe” impairments.
In Stone v. Heckler, 752
F.2d 1099, 1101 (5th Cir. 1985), the court stated that “[a]n
impairment can be considered as not severe only if it is a slight
abnormality having such minimal effect on the individual that it
would not be expected to interfere with the individual’s ability to
work, irrespective of age, education or work experience.”
Plaintiff argues that it “is to defy both common sense and the
clear evidence of record” that Plaintiff’s impairments imposed no
more than a minimal effect on her ability to work in light of
objective evidence of degenerative changes in the lumbar spine,
grade 1 spondylolisthesis, obesity, and bilateral knee pain.
17
However, it is not the court’s job to scour the record to determine
if there is evidence that Plaintiff’s impairments rose to the level
of “severe,” rather, the court must examine the record to determine
if there is substantial evidence to support the ALJ’s determination
that Plaintiff’s impairments were not severe.
The administrative record documents that in 2003 Plaintiff had
a broad-based posterior protrusion and moderate foraminal narrowing
at L4-5, amputated nerve root sleeves at L-5, empty nerve root
sleeves at S1 and marked bilateral narrowing with L-5 nerve root
compression.88
However, this evidence predates the relevant period
and does not provide insight into the last nine months of 2007 when
contemporaneous information found Plaintiff had no nerve damage and
was able to walk without an assistive device.89
The record also documents six months of chiropractic treatments
from June through December 2006, wherein Plaintiff complained about
severe lower back pain and shooting pains in her leg.90
Again,
these records pre-dated the relevant period and neither the ALJ nor
the court can assume that Plaintiff’s lower back pain continued past
December 2006 and imposed more than a minimal effect on her ability
to work after that time.
The court understands that medical records of Drs. Pervez and
88
Tr. 228
89
Tr. 204.
90
Tr. 230-54.
18
Ghadially were destroyed through no fault of Plaintiff.
However,
the administrative records makes clear that those records dated from
2003-2005 for Dr. Ghadially and 2004 for Dr. Pervez.91
The missing
records significantly predate the relevant period and would have no
bearing on whether Plaintiff was suffering from a severe impairment
in 2007.
Only two documents exist from the relevant period. A September
2007 lumbar x-ray found a grade 1 spondylolisthesis at L5-S1 of
approximately eight to nine millimeters and narrowing of the spinal
interspace at that level.92
However, without evidence that the
spondylolisthesis and narrowing of the spinal interspace resulted
in
an
impairment
that
caused
more
than
a
minimal
effect
on
Plaintiff’s ability to work, the x-ray is not evidence from which
the ALJ could have concluded that Plaintiff’s spondylolisthesis and
lower back pain were severe impairments.
Plaintiff was examined by one physician during the relevant
period in connection with an earlier application for benefits.
Dr.
Daniel noted that Plaintiff complained of back pain, had a very slow
and methodical gait, difficulty rising from a seated position and
pain in her right knee upon full flexion and extension.93
However,
he also noted that Plaintiff was able to touch her toes, walk for
91
Tr. 190-91.
92
Tr. 205.
93
Tr. 204.
19
about one mile and stand for thirty minutes.94
Plaintiff was able
to walk without a cane, crutch or walker, and she stated that she
was able to do most of the activities of daily living, such as
cooking, cleaning, grocery shopping and laundry.95
She stated that
sometimes her back pain was so severe that she was not able to walk
and took Motrin and over-the-counter pain medication to address the
pain.
Dr. Daniel observed Plaintiff to be in “no obvious distress”
during the examination.96
Plaintiff bears the burden of proof to show that she suffered
from a “severe” impairment lasting at least twelve months that
prevents her from engaging in substantial gainful activity.
v. Yuckert, 482 U.S. 137, 146 n. 5 (1987).
impairment
or
combination
of
Bowen
The mere presence of an
impairments
will
not
support
a
conclusion that they significantly limited or will limit Plaintiff’s
ability to perform work-related activities for twelve consecutive
months.
Hames v. Heckler, 707 F.2d 162, 165 (5th Cir. 1983)(citing
Demandre v. Califano, 591 F.2d 1088 (5th Cir. 1979)).
Plaintiff was found to be not disabled for a period ending
March 26, 2007, and failed to appeal that determination.
She did
not seek medical treatment during the relevant period, or for a
significant time thereafter.
94
Tr. 203.
95
Id.
96
Plaintiff bears the burden at this
Tr. 204.
20
step of the analysis.
The ALJ outlined in detail his reasoning for
determining at step two that Plaintiff did not suffer from a severe
impairment and the court finds that it is supported by substantial
evidence.
B.
Plaintiff’s remaining arguments
Plaintiff also complains that the ALJ failed to obtain an
updated medical expert opinion as required by SSR 96-6p, failed to
properly develop the case, failed to consult with a medical expert,
failed
to
consider
Plaintiff’s
non-exertional
impairments
and
improperly substituted his own opinions for that of a medical
expert.
As these are related arguments, the court considers them
together.
Plaintiff correctly points out that SSR 96-6p states that an
ALJ must obtain an updated medical opinion from a medical expert
“[w]hen additional medical evidence is received that in the opinion
of the [ALJ] or the Appeals Council may change the State agency
medical . . . consultant’s finding that the impairment(s) is not
equivalent
in
Impairments.”
severity
to
any
impairment
in
the
Listing
of
Thus, the tipping point is whether the additional
evidence might change the original finding of the state agency
expert.
In the present case, the only additional medical evidence
submitted without review from a medical expert were chiropractic
records from 2006 and a 2003 CT scan of the lumbar spine.
21
This
evidence predated the September 2007 consultative examination and,
as it did not relate to the time under consideration, the ALJ did
not err by failing to obtain a medical expert’s review of the
material to determine equivalence to a Listing at step three of the
required analysis.
The case was correctly decided at step two for
the reasons explained above.
reaching
a
decision
on
And, as the case was decided without
medical
equivalence,
the
ALJ
did
not
substitute his judgment for that of a medical expert.
Plaintiff also complains that SSR 82-20 requires the ALJ to
obtain a medical expert’s opinion concerning the onset date of a
disabling impairment when precise information is not available.
Plaintiff argues that a medical expert was necessary to assist the
ALJ in determining Plaintiff’s level of functioning as of her date
last insured.
However, several medical experts reviewed Dr. Daniel’s report
and made determinations of Plaintiff’s level of functioning as of
the date last insured.
For example, in 2007, Dr. Wright reviewed
Dr. Daniel’s report and found that Plaintiff had the physical RFC
to occasionally lift twenty pounds, frequently lift ten pounds, and
could sit and/or stand for about six hours in an eight-hour
workday.97
He stated, “The alleged severity and limiting effects
from the impairments are not wholly supported.”98
97
Tr. 218-25.
98
Tr. 223.
22
A reviewing
physician, Dr. Cremona, agreed that while Plaintiff had pain upon
full knee flexion, she was able to bend eighty degrees and a light
RFC remained appropriate.99
Four years later, in 2011, Dr. Durfor reviewed Dr. Daniel’s
report and determined that Plaintiff had the physical RFC to
occasionally lift twenty pounds, frequently lift ten pounds, and
both
sit
workday.100
and/or
stand
for
about
six
hours
in
an
eight-hour
In making that finding, he referred to Plaintiff’s date
last insured, thus implying that his determination was for the
relevant period and satisfying SSR 82-20.101
As the record reflects that three doctors reviewed the only
medical record from the relevant period and agreed that Plaintiff
had a light RFC as of the date last insured, the court finds that
the ALJ did not violate SSR 82-20, and that remand for additional
review is not appropriate.
Plaintiff alleges that the ALJ failed to adequately develop the
record and that this error requires a remand.
The Fifth Circuit
imposes a duty on the ALJ to fully and fairly develop the facts
relating to a claim for disability benefits.
F.3d 448, 458 (5th Cir. 2000).
Newton v. Apfel, 209
If the ALJ fails in this duty, he
will not have sufficient facts before him to make a fully informed
99
Tr. 207.
100
Tr. 211-17.
101
Tr. 217.
23
decision and, consequently, the decision will not be supported by
substantial evidence.
Cir. 1984).
Kane v. Heckler, 731 F.2d 1216, 1219 (5th
A reviewing court may reverse the ALJ’s unfavorable
decision as not based on substantial evidence if the record shows
that (1) the ALJ failed to fulfill his duty to adequately develop
the record and (2) that the claimant was prejudiced thereby.
Brock
v. Chater, 84 F.3d 726, 728 (5th Cir. 1996).
In some cases, a consultative examination may be ordered to
develop a full and fair record; however, such an examination is not
required unless “the record establishes that such an examination is
necessary to enable the administrative law judge to make the
disability decision.”
Pearson v. Bowen, 866 F.2d 809, 812 (5th Cir.
1989)(quoting Turner v. Califano, 563 F.2d 669, 671 (5th Cir.
1977)). It is within the ALJ’s discretion to require a consultative
examination, and reversal of the ALJ’s determination is appropriate
if Plaintiff can show prejudice from the ALJ’s failure to request
additional evidence.
Id.; Newton, 209 F.3d at 458.
Prejudice can
be established by “showing that additional evidence would have been
produced if the ALJ had fully developed the record, and that the
additional evidence might have led to a different decision.”
Id.
Here, medical records predating the relevant period are no
longer available and Plaintiff did not seek medical treatment during
the relevant period. A consultative examination during the relevant
period concluded that Plaintiff retained the RFC for light work.
24
Plaintiff has not argued that there are other records available to
be considered, and the court finds that there are none.
Having a
second consultative examination in 2012 would not have aided the ALJ
in determining what Plaintiff’s condition was in 2007.
In light of
these facts, the court concludes that the ALJ adequately developed
the record.
Finally, Plaintiff argues that the ALJ failed to consider her
non-exertional impairment of pain on her ability to perform certain
occupations.
Plaintiff told the consultative medical expert, Dr.
Daniel, that she suffered from sharp low back pain that radiated
into her neck and legs and “sometimes” the back pain prevented her
from walking.102 Nonetheless, she was usually able to walk a mile,
touch her toes, and perform most of the activities of daily
living.103
She did not require an assistive device to ambulate.104
This is a case filed under Title II only and the relevant
period ended December 31, 2007.
Plaintiff failed to seek medical
treatment for lumbar pain or knee pain during the relevant period.
The ALJ determined that while Plaintiff’s impairments could have
been expected to produce some of the alleged symptoms, her testimony
about the intensity, persistence and limited effects of the symptoms
was
not
credible
102
the
Id.
104
on
Tr. 203.
103
based
Tr. 204.
25
same
reasoning
supporting
his
determination that she did not suffer from a severe impairment,
either singly or in combination.105
In light of the limited record
in this case of any medical treatment, the court finds the decision
of the ALJ to be supported by substantial evidence.
C.
Defendant’s Motion for Summary Judgment
Defendant asserts in her response that the ALJ’s decision
should
be
affirmed
because
the
ALJ
properly
determined
Plaintiff was not disabled during the relevant period of time.
that
The
court must review the record with an eye toward determining only
whether the ALJ’s decision is supported by more than a scintilla,
but less than a preponderance of evidence.
See Carey, 230 F.3d at
135.
The court finds more than a scintilla of evidence in support
of the ALJ’s decision.
Therefore, the court cannot overturn the
decision of the ALJ, who is given the task of weighing the evidence
and deciding disputes.
See Chambliss v. Massanari, 269 F.3d 520,
522 (5th Cir. 2001); Carrier v. Sullivan, 944 F.2d 243, 247 (5th Cir.
1991).
105
Tr. 14.
26
IV.
Conclusion
Based on the foregoing, Defendant’s Cross-Motion for Summary
Judgment (Doc. 11) is GRANTED, and Plaintiff’s Motion for Summary
Judgment (Doc. 12) is DENIED.
SIGNED in Houston, Texas, this 1st day of October, 2014.
27
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