Nail v. Berryhill
Filing
20
MEMORANDUM OPINION: denying 16 Cross MOTION for Summary Judgment , granting 15 MOTION for Summary Judgment Memorandum in Support of A Social Security Appeal (Signed by Magistrate Judge Nancy K Johnson) Parties notified.(sjones, 4)
United States District Court
Southern District of Texas
ENTERED
May 08, 2018
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
§
§
Plaintiff,
§
§
v.
§
§
NANCY A. BERRYHILL,1
§
ACTING COMMISSIONER OF THE
§
SOCIAL SECURITY ADMINISTRATION, §
§
Defendant.
§
David J. Bradley, Clerk
DONNA NAIL,
CIVIL ACTION NO. H-17-1238
MEMORANDUM OPINION
Pending before the court2 are Plaintiff’s Motion for Summary
Judgment
(Doc.
15)
Judgment (Doc. 16).
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 GRANTS Plaintiff’s motion
and
DENIES
Defendant’s
motion.
This
case
is
REMANDED
for
proceedings in conformity with this opinion.
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
Social
Security
Administration
(“SSA”)
Commissioner
1
Carolyn W. Colvin was the Commissioner of the Social Security
Administration (“SSA”) at the time that Plaintiff filed this case but no longer
holds that position. Nancy A. Berryhill is Acting Commissioner of the SSA and,
as such, is automatically substituted as the defendant in this case.
See 42
U.S.C. § 405(g); Fed. R. Civ. P. 25(d).
2
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. Doc. 14, Ord. Dated July
12, 2017.
(“Commissioner” or “Defendant”) regarding Plaintiff’s claims for
disability insurance under Title II and supplemental security
income under Title XVI of the Social Security Act (“the Act”).3
A.
Medical History
Plaintiff was born on August 15, 1962, and was forty-three
years old on the alleged disability onset date of February 24,
2006.4
Plaintiff worked as a laundry worker at a nursing home
until 2006.5
On March 8, 2013, Plaintiff was admitted to the Bayshore
Medical Center with shortness of breath, where she was diagnosed
with congestive heart failure;
Palur V. Balakrishnan, M.D., (“Dr.
Balakrishnan”) noted it was not likely a case of acute congestive
heart failure.6 Dr. Balakrishnan also indicated that Plaintiff had
new onset type 2 diabetes and hypertension.7
Plaintiff had been
admitted
prior
to
bronchitis.8
the
emergency
room
one
week
with
acute
Dr. Balakrishnan noted that Plaintiff was obese,
smoked one to two packs of cigarettes per day, and had an elevated
3
In the hearing, Plaintiff modified her alleged onset date to February
2, 2014, which waived her Title II claim except with regard to statutory
blindness, as the date last insured for that claim was June 30, 2029. See Tr.
of the Admin. Proceedings (“Tr.”) 19, 40-41, 184.
4
See Tr. 39-40.
5
See Tr. 39-42.
6
See Tr. 239.
7
See id.
8
See id.
2
blood pressure of 130/80.9
An echocardiogram revealed a possible
anterior infarct
function
and
the
of
her
left
ventricle was
moderately-to-severely impaired with an ejection fraction of thirty
to thirty-five percent.10
Plaintiff saw Dr. Balakrishnan at Premier Heart Specialists
for a series of follow-up appointments in 2013 and 2014.11 On March
19, 2013, Plaintiff told Dr. Balakrishnan that she was experiencing
chest pain, difficulty breathing, leg pain, acid reflux, and a
change in her ability to taste.12
reported
no
shortness
palpitations, or edema.13
lose
weight,
continue
of
On October 29, 2013, Plaintiff
breath,
chest
pain,
dizziness,
Dr. Balakrishnan instructed Plaintiff to
her
medications,
and
cease
smoking.14
Plaintiff underwent follow-up testing beginning February 25, 2014,
which showed a mild concentric left ventricular hypertrophy and
severely
chamber.15
depressed
systolic
function
in
her
left
ventricular
On February 26, 2014, testing revealed that Plaintiff
had a very high triglyceride level impeding an accurate calculation
9
See id.
10
See Tr. 263, 267.
11
See Tr. 288-301.
12
See Tr. 299.
13
See Tr. 297.
14
See id.
15
See Tr. 292.
3
of her cholesterol.16
Plaintiff returned to Dr. Balakrishnan for
treatment on March 28, 2014, complaining of a daily burning in her
chest
which
breath.17
resulted
in
nauseam,
vomiting,
and
shortness
of
Because Nexium had not resolved her symptoms, Dr.
Balakrishnan
modified
her
medication
and
ordered
additional
testing.18
On April 16, 2013, Plaintiff presented to Bay Area Diabetes
and Endocrinology for a follow-up on her diabetes diagnosis.19
At
the appointment, Plaintiff complained of “chest pain, weight loss,
and cold[,] numb feet.”20
(1)
Plaintiff’s
history
Kuldip Kaul, M.D., (“Dr. Kaul”) noted:
of
hypertension,
asthma,
chronic
obstructive pulmonary disease (“COPD”), and congestive cardiac
failure; (2) the possibility of Plaintiff’s having coronary artery
disease; and (3) Plaintiff’s blood sugar fluctuations.21 After this
appointment, Plaintiff continued to seek treatment for diabetes
from Dr. Kaul, who subsequently noted that she was “[d]oing well,”
had “fair control” over her blood sugar, was “[t]aking medications
without difficulty,” and had stopped smoking.22
16
See Tr. 290-91.
17
See Tr. 289.
18
See Tr. 289.
19
See Tr. 273-74.
20
Tr. 273.
21
See id.
22
Tr. 275-81.
4
Plaintiff underwent a ophthalmological/optometric consultative
examination with Mark Mayo, M.D., (“Dr. Mayo”) on August 1, 2014.23
Plaintiff reported left eye blindness along with blurriness and
throbbing pain in her right eye.24
Testing revealed no light
perception in her left eye and, for distance without correction,
20/400 in her right eye, and with best correction, 20/150.25
vision in her right eye was 20/80 with best correction.26
Close
Dr. Mayo
concluded that, in addition to her left eye blindness, she had
three-hundred-sixty-degree
severe
constriction
central tunnel of vision in her right eye.27
with
a
small,
Dr. Mayo requested
follow up testing for her right eye and gave her a poor prognosis
for both eyes.28
Plaintiff never sought follow-up testing.29
Plaintiff returned to Premier Heart Specialists on June 10,
2015, and September 9, 2015.30
Plaintiff reported no chest pain or
shortness of breath at the June 10th appointment.31 Dr. Balakrishnan
found that she had intermittent leg claudication (cramping), nerve
23
See Tr. 302-03.
24
See Tr. 302.
25
See id.
26
See id.
27
See Tr. 303.
28
See id.
29
See Tr. 58-59.
30
See Tr. 360-70.
31
See Tr. 367.
5
pain in her feet, weak hands and feet, distal numbness, and pain in
one or more joints.32
Dr. Balakrishnan noted that Plaintiff had
poor exercise habits, engaged in “normal activities of daily
living,” and had normal balance, gait, and stance.33
Plaintiff was
instructed to continue her medications, lose weight, and return for
a follow-up in two months.34
On September 9, 2015, Plaintiff
presented with shortness of breath and dyspnea.35
Dr. Balakrishnan
did not record any other symptoms, remarking that Plaintiff had
poor exercise habits and engaged in normal activities of daily
living.36
return
Plaintiff was instructed to continue her medication and
for
a
follow-up
in
three
months.37
Dr.
Balakrishnan
additionally noted that Plaintiff was seeing a kidney doctor who
reduced some medications and tested her for kidney failure.38
Plaintiff returned to Dr. Kaul on January 15, 2015, to follow
up on her diabetes.39 Plaintiff was sixty-five inches tall, weighed
one hundred and eighty-three pounds, and had a blood pressure of
32
See Tr. 367-68, 370.
33
Tr. 368-69.
34
See Tr. 370.
35
See Tr. 360.
36
See Tr. 360-61.
37
See Tr. 363.
38
See Tr. 361.
39
See Tr. 373-400.
6
124/70.40 Plaintiff’s blood sugar levels were elevated at home, she
was not experiencing hypoglycemia, and her thyroid function was
normal.41
Dr.
Kaul
reported
that
medications without difficulty.”42
Plaintiff
was
“[t]aking
On February 26, 2015, Plaintiff
was reportedly “doing well,” still “[t]aking medications without
difficulty,” and had “better control” over her blood sugar.43
On
May 29, 2015, Dr. Kaul made a similar report about Plaintiff, but
noted that her creatinine level was elevated.44
on
June
26,
2015,
additionally
found
elevated.45
and
Dr.
that
Kaul
made
Plaintiff’s
Plaintiff returned
similar
findings,
potassium
levels
and,
were
On July 24, 2015, Plaintiff’s creatinine and potassium
levels were elevated, and she continued to have no difficulty with
her medications or blood sugar.46
reported
that
Plaintiff’s
On September 17, 2015, Dr. Kaul
blood
sugar
and
creatinine
levels
remained elevated, but that she was “doing well” and her diabetes
was controlled by medication.47
40
See Tr. 399.
41
See id.
42
Id.
43
Tr. 397.
44
See Tr. 392.
45
See Tr. 387.
46
See Tr. 382.
47
A physical examination revealed
Tr. 377.
7
that she was of average build and had a stable weight.48
Plaintiff
was instructed to continue her medications and put more effort into
working on her diet.49
Plaintiff saw her primary care physician, James Incalcaterra,
M.D., (“Dr. Incalcaterra”) on August 12, 2015, because she was
experiencing
more
shortness
of
breath
than
usual.50
Due
to
Plaintiff’s increasingly poor results on kidney tests, Plaintiff
was diagnosed with stage three (moderate) kidney disease, and Dr.
Incalcaterra referred her to a nephrologist.51
Dr. Incalcaterra
noted that her motor strength was normal.52
Plaintiff saw nephrologist Tahir Hafeez, M.D., (“Dr. Hafeez”)
for the first time on August 31, 2015.53
Dr. Hafeez explained that
Dr. Incalcaterra referred Plaintiff due to elevated potassium and
creatinine levels, as well as low blood pressure.54
Plaintiff did
not have any specific complaints at the appointment, but stated
that she experienced dizziness when her blood pressure was low; at
the appointment her blood pressure measured at 77/59 and 86/52.55
48
See id.
49
See id.
50
See Tr. 416-17.
51
See Tr. 416.
52
See id.
53
See Tr. 410.
54
See id.
55
See Tr. 410.
8
Dr. Hafeez noted that she had a normal gait, strength, and vision,
and that she would walk to exercise.56
Dr. Hafeez concluded that
she had stage three kidney disease and that her decreased kidney
function was secondary to renal perfusion caused by her low blood
pressure.57 Plaintiff’s medication was adjusted.58 On September 14,
2015, Plaintiff had no new issues, and her blood pressure was
elevated.59
Dr. Hafeez concluded that her kidney disease was stage
four (severe).60
Plaintiff followed up on October 19, 2015, where
she reported no new issues.61
Dr. Hafeez stated that she was not
experiencing any blurriness or loss of vision, no tingling or
numbness, and no shortness of breath.62
Overall, Dr. Hafeez
concluded that her chronic kidney disease was stage three and
stable.63
B.
Application to SSA
Plaintiff applied for disability insurance benefits on May 22,
2014,
and
supplemental
56
See Tr. 411-12.
57
See Tr. 412.
58
See id.
59
See Tr. 406.
60
See Tr. 408.
61
See Tr. 402-05.
62
See Tr. 402.
63
security
See Tr. 404.
9
income
on
February
2,
2014,
claiming a disability onset date of February 24, 2006.64
In a
disability report dated May 22, 2014, Plaintiff claimed that
congestive heart failure, diabetes, and her blind left eye limited
her ability to work.65
Plaintiff also indicated that her highest
level of education was ninth grade.66
In a later report from
September 11, 2014, Plaintiff answered that her condition had an
effect on household chores and driving, and that she had become
more limited in these areas.67
On November 4, 2014, Plaintiff
reported that: (1) her daughter had assumed responsibility for
cooking and cleaning; (2) it took her longer to groom herself due
to the need to take breaks; and (3) she had stopped going to the
grocery store, driving, and spending time with friends.68
In a function report dated June 7, 2014, Plaintiff reported
that she could only clean the house for around a minute before
losing her breath, after which she would lay down for about half
the day before she felt better.69
Plaintiff stated that her
conditions impeded her ability to work, walk, sleep, complete
household chores, and care for her family.70
64
See Tr. 146-168.
65
See Tr. 187.
66
See Tr. 188.
67
See Tr. 217.
68
See Tr. 226.
69
See Tr. 204.
70
See Tr. 203-04, 207.
10
Plaintiff did not
prepare meals or complete chores because if she stood up for too
long, she would experience shortness of breath and dizziness.71
Plaintiff’s daughter would complete the household chores for her.72
Plaintiff could go grocery shopping or leave the house if she was
driven by someone else.73
When she went grocery shopping, she rode
in the electric cart at the store.74
For her interests, Plaintiff
reported that she would watch television and talk on the phone.75
Plaintiff noted that her conditions affected lifting, walking,
standing,
kneeling,
concentrating,
and
understanding.76
climbing
following
Plaintiff
stairs,
instructions,
noted
that
she
completing
but
not
finished
tasks,
seeing
what
or
she
started.77
In the process of her application to the SSA, Plaintiff’s
treating physician, Dr. Balakrishnan, filled out several residual
functional capacity questionnaires on May 28, 2014, February 10,
2015, and December 22, 2015.78
All three forms indicated the same
71
See Tr. 205.
72
See id.
73
See Tr. 206.
74
See id.
75
See Tr. 207.
76
See Tr. 208.
77
See id.
78
See Tr. 285-86, 328-29, 419-20.
11
physical limitations.79
Dr. Balakrishnan noted that Plaintiff’s
symptoms constantly impacted her ability to focus on work-related
tasks and that she would need would need additional breaks during
the work day.80
Dr. Balakrishnan found that Plaintiff could: (1)
walk half a block at a time without pain; (2) sit for fifteen
minutes at a time; (3) stand or walk for fifteen minutes at a time;
(4) sit for one hour in an eight-hour work day; (5) stand or walk
for one hour in an eight-hour work day; and (6) occasionally lift
less than ten pounds, but never lift more than ten.81
In terms of
breaks, Dr. Balakrishnan said that Plaintiff would need frequent
thirty-five-to-forty minute breaks during the work day, and she
would need to be able to change positions at will.82
During an
eight-hour work day, Dr. Balakrishnan reported that Plaintiff could
only use her hands to grasp, turn, and twist objects twenty percent
of the day, her fingers for fine manipulation twenty percent of the
day, and her arms for reaching twenty percent of the day.83
Due to
her conditions, Plaintiff would need to be absent more than four
days a month, according to Dr. Balakrishnan.84
Overall, Dr.
Balakrishnan concluded that Plaintiff’s impairments were consistent
79
See id.
80
See Tr. 285, 328, 419.
81
See Tr. 286, 329, 419.
82
See Tr. 285, 328, 419.
83
See Tr. 286, 329, 419.
84
See Tr. 286, 329, 420.
12
with her limitations and symptoms, and that she was not able to
sustain full-time employment.85
Defendant denied Plaintiff’s applications at the initial and
reconsideration
levels.86
At
the
initial
and
reconsideration
levels, the state agency physicians found that Plaintiff had no
severe impairments, and no RFC determination was made.87
Plaintiff
requested a hearing before an administrative law judge (“ALJ”) of
the Social Security Administration.88
The ALJ granted Plaintiff’s
request and conducted a hearing on January 7, 2016.
C.
Hearing
At the hearing, Plaintiff and a vocational expert, Lorie J.
McQuade (“VE” or “McQuade”), testified.89 Plaintiff was represented
by an attorney.90
At the outset of the hearing, the ALJ discussed
Plaintiff’s onset date with her attorney, amending it to February
2, 2014, as she was dropping all her claims under Title II except
for statutory blindness.91
The ALJ questioned Plaintiff about her most recent work
experience, which Plaintiff stated consisted of performing laundry
85
See Tr. 286, 329.
86
See Tr. 61-93.
87
See Tr. 61-67, 69-75.
88
See Tr. 97-98.
89
See Tr. 37-60.
90
See Tr. 38.
91
See Tr. 39-41.
13
work for a nursing home and concluded in 2006.92
Plaintiff ceased
working due to an injury in her left eye, and she testified that
she was fully blind in her left eye.93
As to her other health
impairments, Plaintiff explained that she had diabetes, congestive
heart failure, chronic obstructive pulmonary disease (“COPD”), and
kidney failure.94
At the time of the hearing, Plaintiff’s left arm
was sprained and in a sling due to slipping in water at her home.95
The last time Plaintiff was hospitalized took place in 2013
due to heart-related complications.96 During that hospitalization,
Plaintiff
was
diabetes.97
resolved,
diagnosed
with
congestive
heart
failure
and
Plaintiff’s congestive heart failure had since been
but
she
said
that
shortness of breath from it.98
she
still
experienced
pain
and
Plaintiff utilized an inhaler to
address breathing issues related to asthma.99
During the day, Plaintiff alternated between sitting and
standing.100
Due to neuropathy in her feet caused by her diabetes,
92
See Tr. 41-42.
93
See Tr. 42.
94
See Tr. 42-43.
95
See Tr. 43.
96
See id.
97
See Tr. 43-44.
98
See Tr. 44.
99
See Tr. 45.
100
See Tr. 45-46.
14
Plaintiff could only stand for twenty minutes, and then she would
sit for thirty to forty minutes before standing again.101
The ALJ
commented that it appeared that Plaintiff could stand for around
one-third of the day and sit for two-thirds of the day, to which
Plaintiff agreed.102
lift
pounds.103
fifteen
household
chores
neuropathy.104
attack
due
Plaintiff testified that she could, at most,
due
Plaintiff’s
to
daughter
Plaintiff’s
breathing
completed
problems
most
and
Plaintiff stopped driving a year after her heart
to
difficulties.105
her
vision
impairment,
pain,
and
breathing
In terms of potentially returning to work as a
laundry worker, Plaintiff explained that due to her inability to
stand for long periods, she would have difficulty completing such
a job, and, that even if she were able to sit, it would still be
difficult due to fatigue and other physical limitations.106
Plaintiff’s
attorney
stated
that
Plaintiff’s
neuropathy
symptoms were not often mentioned in the medical records and asked
her if she was taking medication for it.107
that she
took
medication
101
See id.
102
See Tr. 46.
103
See Tr. 46-47.
104
See Tr. 52.
105
See Tr. 52-53.
106
See Tr. 53.
107
daily
See Tr. 50.
15
for
Plaintiff responded
neuropathy,
but
when she
informed her doctor it was not working well for her, he told her to
take a second dose, which still was not making a difference in her
treatment.108
Related to her kidney condition, Plaintiff took medication,
that reduced her symptoms from stage four to stage three kidney
failure.109
Plaintiff also testified that she took blood pressure
medication and a weekly insulin shot in her stomach for diabetes.110
Plaintiff used her asthma inhaler every day.111
As to her eye-related limitations, Plaintiff testified that in
addition to left-eye blindness, she continued to have problems with
her right eye on a daily basis.112
Plaintiff explained that she had
blurry vision in her right eye every two to three hours when she
strained her eye for too long from reading or other activities.113
108
See Tr. 51.
109
See Tr. 47-48.
110
See Tr. 48.
111
See Tr. 49.
112
See Tr. 42, 49.
113
See Tr. 50. Plaintiff stated that she was not able to read and also
denied that she did not know how to read or that it was caused by the blurriness.
This exchange between the attorney and Plaintiff was difficult to understand.
It is repeated here:
ATTY:
Q: With regard to your vision, you indicated that the blurriness
comes when you strain it too long. What kind of things strain your
eyes?
A: When I try to look at a paper or something or – Q: Okay.
A: – - when I’m doing something.
Q: If I were to give you a page of, you know, just regular
typewritten paper, would you be able to read that?
A: No, sir.
16
The attorney asked Plaintiff about Dr. Balakrishnan’s opinion
from May 2014, which stated that she could only stand for fifteen
to twenty minutes.114
Plaintiff elaborated that at that point in
time, she was experiencing not only foot pain from neuropathy, but
also shortness of breath from standing.115
At the conclusion of Plaintiff’s testimony, the VE discussed
Plaintiff’s past work history and the capability of an individual
with Plaintiff’s RFC to perform those or other jobs.116
The VE
stated that Plaintiff’s past relevant work met the Dictionary of
Occupational Titles (“DOT”) definition of a laundry worker, which
the VE considered a light, unskilled position.117
The ALJ presented the following hypothetical individual:
For the purpose of some hypothetical questions, I’m going
to ask you to assume, please, that we’re always dealing
with an individual approaching advanced age and currently
who is 53; one who has a limited or eighth grade
education; one who is literate; one who has the same
vocational background as [Plaintiff] possesses.
Further assume, please, that, secondary to the diabetes,
the COPD, and the chronic kidney disease, the
hypothetical individual could stand and walk for four out
Q:
A:
Q:
A:
Q:
A:
Okay. And that’s because of the blurriness?
No, sir. I just - Okay. You just couldn’t read it?
No, sir.
Meaning you don’t know how?
No.
114
See Tr. 51.
115
See Tr. 51-52.
116
See Tr. 53-57.
117
See Tr. 53-54.
17
of eight and sit for four out of eight; would need the
ability to be able to change positions at will, could
lift and carry, push and pull, occasionally twenty and
frequently ten; can never use ropes, ladders, or
scaffolds; climbing stairs would be occasional. And the
hypothetical individual would need to avoid concentrated
exposure from fumes, noxious odors, dusts, mists, gas, as
well as poor ventilation.118
The VE testified that such an individual could not perform
Plaintiff’s past relevant work, pointing to Plaintiff’s issues with
fumes, odors, and dusts.119
However, the VE found that Plaintiff
could perform positions such as ticket seller, office helper, and
small products assembler.120
The ALJ then posed another hypothetical to the VE:
Hypothetical number two would be the same as hypothetical
number one, in terms of non-exertional limitations.
However, in terms of the exertional limitations, assume,
please, that the hypothetical individual would be limited
to sedentary work only. As to that assessment, if I did
agree with it, could that hypothetical individual perform
any of [Plaintiff’s] past work?121
The VE stated that such an individual could not perform Plaintiff’s
past work.122 The ALJ inquired whether this hypothetical individual
would “grid out,” and the VE responded affirmatively.123
Plaintiff’s attorney modified the hypothetical “to include
118
Tr. 54.
119
See id.
120
See Tr. 54-55.
121
Tr. 55-56.
122
See Tr. 56.
123
Id.
18
restrictions on the hypothetical individual’s vision, consistent
with what she’s testified today; that she has no vision in her left
eye and with the right eye would be unable to read more than
occasionally during the work day” and asked how that would impact
the available positions.124
to
the
attorney
regarding
The VE asked some follow-up questions
Plaintiff’s
vision.125
Plaintiff’s
attorney explained that due to fatigue and strain in her eyes, she
would not be able to read on a consistent basis; the VE responded
that this would “compromise performance of those occupations such
that they might have a difficult time maintaining them,” and that
there would not be replacement jobs that she could perform.126
The ALJ concluded the hearing by asking Plaintiff about an
August 2014 ophthalmology appointment, where it was recommended
that she receive further testing.127
Plaintiff explained that she
never attended a follow-up appointment and that the August 2014
appointment was the last time she saw an eye doctor.128
D.
Commissioner’s Decision
On January 26, 2016, the ALJ issued an unfavorable decision.129
124
Id.
125
See Tr. 56-57.
126
Tr. 57.
127
See Tr. 57-59.
128
See id.
129
See Tr. 19-31.
19
The ALJ found that Plaintiff met the requirements of insured status
through December 31, 2012,130 and that Plaintiff had not engaged in
substantial gainful activity since February 24, 2006, the alleged
onset date.131
The ALJ recognized the following impairments as
severe: “diabetes, chronic obstructive pulmonary disease, and stage
III
chronic
kidney
disease”
but
noted
that
her
obesity,
hypertension, left eye blindness, and congestive heart failure were
not severe impairments.132
The ALJ found that, based on the medical
evidence, these non-severe impairments only caused her minimal
functional limitations.133
As to her visual impairment, the ALJ
noted that “the condition affects only one side and [Plaintiff] has
functional vision on the right” and that it was “termed nonsevere
by the reviewing physicians at the State agency.”134
Plaintiff’s severe impairments, individually or collectively,
did not meet or medically equal disorders described in the listings
of the regulations135 (the “Listings”), according to the ALJ.136
In
particular, the ALJ considered Listings 9.00, 6.02, and 3.03 with
130
However, for her claim of statutory blindness under Title II, the
date last insured is June 30, 2029. See Tr. 19.
131
See Tr. 21.
132
Tr. 21-22.
133
See Tr. 22-23.
134
Tr. 22.
135
20 C.F.R. Pt. 404, Subpt. P, App. 1.
136
See Tr. 23.
20
regards
to
Plaintiff’s
diabetes,
kidney
failure,
and
asthma,
finding that the medical evidence did not support a finding that
she met any of these listings.137
In
determining
Plaintiff’s
RFC
to
perform
work-related
activities, the ALJ discussed Plaintiff’s alleged symptoms and her
medical treatment and stated that he followed the regulatory
requirements as to both.138
When considering Plaintiff’s symptoms,
the ALJ first evaluated whether a medically determinable impairment
could reasonably be expected to produce the alleged symptoms.139
Second, he evaluated the “intensity, persistence, and limiting
effects of [Plaintiff’s] symptoms to determine the extent to which
they limit[ed] [Plaintiff’s] ability to do basic work activities,”
making a credibility finding for those symptoms that were not
substantiated by objective medical evidence.140
The ALJ discussed Plaintiff’s medical treatment, including
records from: her March 9, 2013 emergency room visit; appointments
with Plaintiff’s cardiologist, Dr. Balakrishnan; her August 1, 2014
ophthalmological consultative examination; Plaintiff’s appointments
related to her diabetes; and visits with her nephrologist, Dr.
137
See id.
138
See Tr. 23-29.
139
See Tr. 26-29.
140
Tr. 26.
21
Hafeez.141
The
ALJ
explained
that
he
gave
the
opinions
of
Dr.
Balakrishnan some, but not controlling weight because they were
“inconsistent
with
his
own
treating
notes,”
contained
“no
explanation,” conflicted with medical evidence presented, and were
written years apart yet were exactly the same.142
given
to
the
opinions
of
Dr.
Hafeez
and
Some weight was
the
state
agency
physicians.143
The ALJ engaged in a thorough account of Plaintiff’s testimony
regarding the symptoms that she experienced as a result of her
impairments.144
Specifically,
associated
Plaintiff’s
with
the
visual
ALJ
discussed
impairment,
the
heart
symptoms
issues,
asthma, kidney issues, neuropathy, and diabetes.145
He concluded: “After careful consideration, the undersigned
finds that the claimant’s medically determinable impairments could
reasonably be expected to cause the alleged symptoms; however,
[Plaintiff’s] statements concerning the intensity, persistence and
limiting effects of these symptoms are not entirely credible for
the reasons explained in this decision.”146
141
See Tr. 23-29.
142
Tr. 29.
143
See id.
144
See Tr. 26-28.
145
See id.
146
Tr. 27.
22
The ALJ found Plaintiff capable of performing light work
because
she
could
occasionally
lift
or
carry
twenty
pounds,
frequently lift or carry ten pounds, push and pull within those
exertional limitations, stand and walk for four hours in an eighthour work day, and sit for four hours in an eight-hour work day.147
The ALJ included the following limitations in Plaintiff’s RFC: (1)
changing positions at will; (2) never climbing ropes, ladders, or
scaffolds; (3) occasional climbing of ramps and stairs; and (3)
avoid concentrated exposure to fumes, odor, dust, mist, gases, and
poor ventilation.148
The ALJ found that Plaintiff was not able to perform her past
relevant work as laundry worker, as the VE testified Plaintiff’s
RFC would mandate that she avoid exposure to fumes, odor, dust,
mist gases, and poor ventilation.149
The ALJ stated that Plaintiff
was closely approaching advanced age as of the alleged onset date,
had a limited education, and was able to communicate in English.150
Because
Plaintiff’s
past
work
experience
transferability of job skills was not at issue.151
was
unskilled,
The ALJ noted
that, if Plaintiff was able to perform a full range of light work,
147
See Tr. 26.
148
See id.
149
See Tr. 29.
150
See id.
151
See Tr. 30.
23
the Medical-Vocational Guidelines152 directed a finding of not
disabled.153
Considering
Plaintiff’s
age,
education,
work
experience, and RFC, the ALJ concluded that Plaintiff could perform
other jobs in the national economy, including positions such as
ticket seller, office helper, and small products assembler.154
The
ALJ
concluded
that
Plaintiff
was
not
disabled
February 24, 2006, through the date of the decision.155
from
Plaintiff
appealed the ALJ’s decision, and, on February 2, 2017, the Appeals
Council denied Plaintiff’s request for review, thereby transforming
the ALJ’s decision into the final decision of the Commissioner.156
After receiving the Appeals Council’s denial, Plaintiff sought
judicial relief of the decision by this court.157
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).
152
20 C.F.R. Pt. 404, Subpt. P, App. 2.
153
See Tr. 30.
154
See id.
155
See Tr. 31.
156
See Tr. 1-6.
157
See Doc. 1, Pl.’s Compl.
24
A.
Legal Standard
In order to obtain disability benefits, a claimant bears the
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 12 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); 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
25
considered to determine whether [s]he can do other work.
Bowling v. Shalala, 36 F.3d 431, 435 (5th Cir. 1994); see also 20
C.F.R. § 404.1520.
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.” 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).
Only if no credible evidentiary choices of medical findings
exist to support the Commissioner’s decision should the court
overturn it.
1988).
See 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
of the Commissioner as much as is possible without making its
26
review meaningless.
Id.
III. Analysis
Plaintiff requests judicial review of the ALJ’s decision to
deny
disability
benefits.
Plaintiff
asserts
that
the
ALJ’s
decision contains the following errors: (1) the ALJ misapplied the
grid;
(2)
the
ALJ’s
findings
on
Plaintiff’s
credibility
are
unsupported; and (3) the ALJ’s hypothetical did not take into
account Plaintiff’s visual impairments.
Defendant argues that the
ALJ’s decision is legally sound and is supported by substantial
evidence.
A.
Grid
Plaintiff claims that she should be found disabled under the
Medical-Vocational Guidelines, contending that she was illiterate
and
therefore
falls
under
§
202.09,
mandating
a
finding
of
disabled. The ALJ found that Plaintiff fell under § 202.10 because
she was closely approaching advanced age, was able to communicate
in English, and had unskilled work experience, therefore meaning
that she was not disabled.
In support of her argument, Plaintiff points to testimony
where she said that she could not read a typewritten paper due to
problems with her eyes.
However, when questioned if this meant
that
how
she
did
not
know
to
read,
she
answered
“no.”158
Additionally, in her process of applying for benefits, Plaintiff
158
Tr. 50.
27
answered that she was able to speak, read, write, and understand
English.159
Therefore, the ALJ did not commit legal error in
finding that Plaintiff was literate and applying § 202.10 on the
Grid.
The ALJ’s decision was supported by substantial record
evidence.
B.
Credibility
In March 2016, the Social Security Administration issued a new
Social Security Ruling (“SSR”) on the evaluation of symptoms in
disability claims. See SSR 16-3p, 2016 WL 1119029 (Mar. 16, 2016).
SSR 16-3 superseded the longstanding SSR 96-7p, 1996 WL 374186
(July 2, 1996), which was entitled “Policy Interpretation Ruling
Titles II and XVI: Evaluation of Symptoms in Disability Claims:
Assessing the Credibility of an Individual's Statements.”
The
stated purpose of SSR 16-3p is to “provide[] guidance about how
[SSA] evaluate[s] statements regarding the intensity, persistence,
and limiting effects of symptoms in disability claims under Titles
II and XVI of the Social Security Act (Act).”
1119029, at *1.
the policy.
SSR 16-3p, 2016 WL
SSR 16-3p eliminated the word “credibility” from
See id.; Mayberry v. Colvin, No. G-15-330, 2016 WL
7686850, at *5 (S.D. Tex. Nov. 28, 2016)(unpublished).
District
courts are divided on the issue of whether SSR 16-3p should apply
retroactively.
cases).
159
Mayberry, 2016 WL 7686850, at *5 (collecting
In Mayberry, the court pointed out that SSR 16-3p “was
See Tr. 186.
28
designed to clarify rather than change existing law.”
Id.
SSR 16-3p explains that, pursuant to the regulations, “an
individual’s
statements
of
symptoms
alone
are
not
enough
to
establish the existence of a physical or mental impairment or
disability.”
SSR 16-3p, 2016 WL 1119029, at *2.
Even so, the ALJ
cannot ignore statements of symptoms but, rather, must evaluate
them
according
to
the
two-step
process
set
forth
in
the
regulations: (1) consideration of “whether there is an underlying
medically determinable physical or mental impairment[] that could
reasonably be expected to produce an individual’s symptoms, such as
pain;” and (2) evaluation of “the intensity and persistence of the
symptoms to determine the extent to which the symptoms limit an
[adult’s] ability to perform work-related activities.”
See id.
The court must give deference to the ALJ’s evaluation of the
plaintiff’s subjective complaints if it is supported by substantial
record evidence.
See Villa v. Sullivan, 895 F.2d 1019, 1024 (5th
Cir. 1990).
Plaintiff does not contend that SSR 16-3p applies; Plaintiff
cites SSR 96-7p in her motion.
applies,
the
complaints.
ALJ
did
err
in
However, regardless of which SSR
his
assessment
of
Plaintiff’s
One error resulted from the ALJ’s assessment of
Plaintiff’s disability report, in which he states that Plaintiff
said “she ha[d] no problems watching television daily and no
29
problem with finishing reading, movies, or chores.”160
However, in
that function report, a disability report, and her testimony, she
stated that she could not finish housework and that her daughter
completed the household chores for her.
What the ALJ appears to be
referencing is a box which Plaintiff checked yes in response to a
question:
“Do
you
finish
what
you
start?
(For
example,
conversation, chores, reading, watching a movie.).”161
a
The court
disagrees that this meant that she necessarily read or did chores;
nowhere in the disability report did she note that she read.
In
Aguilar v. Astrue, C.A. No. C-10-349, 2011 WL 3566863, at *11 (S.D.
Tex. July 28, 2011), the ALJ also mistakenly interpreted parts of
Plaintiff’s
questionnaire,
and
the
court
found
it
to
be
a
prejudicial error, especially because other records supported the
limitations that the ALJ claimed Plaintiff did not have.
Additionally, the ALJ also impermissibly “played doctor” in
his evaluation of Plaintiff’s credibility. In his opinion, the ALJ
wrote, “[a]n individual who could sit for only one hour a day and
stand for one hour a day, as reported by Dr. Balakrishna[n], and
needing an
electric
cart
to
go shopping,
would
exhibit
some
deconditioning, atrophy, wasting, deformity, or paralysis.
Yet
every physical examination indicates normal gait, strength, and
160
Tr. 28.
161
See Tr. 208.
30
muscle tone.”162
In Frank v. Barnhart, 326 F.3d 618, 621-22 (5th
Cir. 2003), the Fifth Circuit looked at a similar statement from an
ALJ,163 finding that it was an error because the ALJ was “playing
doctor,” but that the error was harmless, because it was not
heavily relied upon as there was sufficient medical evidence
demonstrating that the plaintiff could work.
However, while these were errors made by the ALJ, substantial
evidence that supports the ALJ’s conclusion that Plaintiff was not
entirely credible about the severity of her symptoms.
The ALJ
pointed to inconsistencies in the evidence, including the extent to
which she was affected by neuropathy and contradictions between the
statements by Dr. Balakrishnan that Plaintiff could not perform
many physical activities, and the medical records noting that
Plaintiff performed normal daily activities and had a normal gait
and stance.
Therefore, the ALJ’s decision as to Plaintiff’s
credibility was supported by substantial evidence.
C.
Hypothetical
Plaintiff contends that the ALJ erred by not incorporating her
162
Tr. 28.
163
The statement is as follows:
The undersigned finds it significant that despite allegations of
disabling
impairments
since
October
of
1993,
consultative
examinations ... revealed no evidence of atrophy. It would seem
reasonable that disabling symptoms that allegedly preclude any
significant walking, standing, sitting, lifting, and carrying would
result in observable findings of atrophy or muscle tone loss....
Frank, 326 F.3d at 622.
31
visual limitations into the hypothetical question, which resulted
in an RFC that included no visual limitations.
Plaintiff’s visual limitations non-severe.
The ALJ considered
This was error because
Plaintiff’s visual limitations included a total lack of vision in
her left eye and severely reduced tunnel vision in her right eye.
But even if Plaintiff’s visual limitations were properly deemed
non-severe, they should have been incorporated into her RFC.
A claimant’s RFC is her utmost remaining ability to work
despite all of her limitations resulting from her impairment. See
Villa, 895 F.2d at 1023 (5th Cir. 1990); 20 C.F.R. § 404.1545(a)(1).
In evaluating the claimant’s RFC, the ALJ is directed by the
regulations to consider how the claimant’s impairments affect her
physical,
mental, and
other abilities,
as
well
limiting effects of all of her impairments.
404.1545.
as
the
total
See 20 C.F.R. §
The mere mention of a condition in the medical records
does not establish a disabling impairment or even a significant
impact on that individual’s functional capacity.
Cf. Johnson v.
Sullivan, 894 F.2d 683, 685 (5th Cir. 1990)(referring to a diagnosis
as only part of the evidence that must be considered).
The regulations provide that the ultimate responsibility for
determining RFC lies with the ALJ. 20 C.F.R. § 404.1527(d)(2); see
also Taylor v. Astrue, 706 F.3d 600, 602-03 (5th Cir. 2012).
After
arriving at an RFC that takes “into account all the restrictions
reasonably warranted by the evidence,” an ALJ may rely on the
32
response of a vocational expert to a hypothetical question on job
availability
limitations.
2004).
as
it
relates
to
a
person
with
the
claimant’s
Domingue v. Barnhart, 388 F.3d 462, 463 (5th Cir.
In order to serve as substantial evidence, the vocational
expert’s testimony must be based on a hypothetical question that
incorporates all of the limitations recognized by the ALJ and must
be subject to the claimant’s cross-examination.
See Masterson v.
Barnhart, 309 F.3d 267, 273-74 (5th Cir. 2002)(citing Boyd v. Apfel,
239 F.3d 698, 707 (5th Cir. 2001)).
In this case, the hypothetical question did not reasonably
incorporate all of Plaintiff’s limitations.
There is support in
the record that Plaintiff had a severe visual impairment, as seen
in the consultative examination conducted by Dr. Mayo.
The ALJ
recognized this fact in his questioning of Plaintiff in the hearing
but failed to address the visual limitation in his RFC.
Despite
the fact that Plaintiff had limited vision in her right eye,164 and
the undisputed fact that Plaintiff was completely blind in her left
eye, no visual limitations were included in the hypothetical
question or RFC. This was error.
up
on
her
ophthalmological
While Plaintiff failed to follow
examination,
the
2014
examination
clearly indicated that Plaintiff had a severe visual impairment.
It was unreasonable for these limitations to not be included in the
RFC or hypothetical question.
164
Her right-eye vision was described as a “three-hundred-sixty-degree
severe constriction with a small central tunnel of vision.” See Tr. 303.
33
C.
Disposition
The court finds that this case should be remanded so that the
ALJ may pose a hypothetical question that properly includes all of
Plaintiff’s limitations.
IV. Conclusion
Based on the foregoing, the court GRANTS Plaintiff’s motion
for summary judgment and DENIES Defendant’s motion for summary
judgment.
This action is REMANDED for further proceedings in
conformity with this opinion.
SIGNED in Houston, Texas, this 8th day of May, 2018.
______________________________
U.S. MAGISTRATE JUDGE
34
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