Myers v. Commissioner of Social Security
Filing
22
MEMORANDUM OPINION granting 20 Cross MOTION for Summary Judgment ; denying 16 19 Motions for Summary Judgment. (Signed by Magistrate Judge Nancy K Johnson) Parties notified.(sjones, 4)
United States District Court
Southern District of Texas
ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
§
§
Plaintiff,
§
§
v.
§
§
NANCY A. BERRYHILL,
§
ACTING COMMISSIONER OF THE
§
SOCIAL SECURITY ADMINISTRATION, §
§
Defendant.
§
October 24, 2018
David J. Bradley, Clerk
DAVID ALLEN MYERS,
CIVIL ACTION NO. H-17-1589
MEMORANDUM OPINION
Pending before the court1 are Plaintiff’s Motions for Summary
Judgment2 (Docs. 16 & 19) and Defendant’s Cross-Motion for Summary
Judgment (Doc. 20).
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 motion
and DENIES Plaintiff’s motions.
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
(“Commissioner” or “Defendant”) regarding Plaintiff’s claim for
disability insurance benefits under Title II of the Social Security
1
The parties consented to proceed before the undersigned magistrate
judge for all proceedings, including trial and final judgment, pursuant to 28
U.S.C. § 636(c) and Federal Rule of Civil Procedure 73. Doc. 18, Ord. Dated
Feb. 15, 2018 .
2
Although Plaintiff did not title these pleadings as motions, he seeks
a judgment in his favor in each.
Act (“the Act”).
A.
Medical History3
Plaintiff was born on October 16, 1958, and was forty-five
years old on the alleged disability onset date of February 6,
2004.4
On February 8, 1996, Plaintiff injured his right knee when he
slipped and fell while working for the United States Post Office.5
On November 1, 1996, an MRI of Plaintiff’s knee revealed a tear of
his medial meniscus.6
his right knee.7
Plaintiff underwent surgical treatment on
Plaintiff then re-injured his right knee in
October 1997 and again in December 1998.8
Due to continuing issues
with his right knee, Plaintiff began receiving steroid injections
in his knee.9
On
March
18,
1999,
Plaintiff
underwent
an
arthroscopic
evaluation and treatment procedure to repair his right knee after
an MRI revealed a torn medial meniscus.10
During the surgery, the
3
Plaintiff attached additional medical evidence to his complaint that
was not part of the administrative record. As discussed below, this new evidence
is not material. Accordingly, it is not considered in this section.
4
See Tr. of the Admin. Proceedings (“Tr.”) 13, 58.
5
See Tr. 363-65, 400.
6
See Tr. 373.
7
See Tr. 370.
8
See Tr. 370, 400.
9
See Tr. 368-72.
10
See Tr. 341.
2
surgeon
discovered
chondromalacia
medial
chondromalagcia
plateau.”11
surgery:
that
Plaintiff
tibial
medial
also
plateau,”
had
femoral
condyle
and
and
a
“grade
II
a
“grade
II
lateral
tibial
The following procedures were performed during the
(1)
“arthroscopic
partial
medial
meniscectomy;”
(2)
“chondroplasty medial tibial plateau;” (3) “chondroplasty medial
femoral condyle;” and (4) “chondroplasty lateral tibial plateau.”12
As a result of his prior accidents and post-surgery gait,
Plaintiff began to have back problems.13 On July 8, 1999, Plaintiff
underwent an MRI of his back that revealed a disc herniation at the
L5-S1 disc.14
To help with his back issues, Plaintiff began
physical therapy.15 In December 2000, Plaintiff’s doctor determined
that after several years of failed conservative treatments, a
surgical procedure was necessary.16
underwent
“mini-open
On January 9, 2001, Plaintiff
retro-peritoneal
exposure
lumbar
spine
surgery,” and “anterior lumbar interbody decompression & fusion
surgery” for his “degenerative disc disease, L5/S1, [and] lumbar
radiculopathy.”17
11
See Tr. 341.
12
See Tr. 341.
13
See Tr. 369, 372.
14
See Tr. 367.
15
See Tr. 459-62.
16
See Tr. 456-58.
17
See Tr. 336, 384-98.
3
Following his back surgery, Plaintiff began a routine of
physical therapy and was instructed to take anti-inflammatory
medications as needed.18
In November 2001, Plaintiff was given an
injection in his back and was told that he was able to begin
working light duty for four hours per day.19
Plaintiff was to
refrain from any heavy lifting, carrying, or bending.20
There is a lengthy absence in Plaintiff’s medical records
before Plaintiff began experiencing back pain again in March 2004.21
In April 2004, a CT scan was taken of Plaintiff’s back.
The CT
scan revealed that Plaintiff had disc bulges at his L3-4 and L5-S1
discs.22
At a follow-up appointment in February 2005, Michael
Shapiro, M.D. (“Dr. Shapiro”), found that Plaintiff had lumbago, a
lumbar
sprain,
pathology.23
lumbar
disc
degeneration,
and
adjacent
disc
Plaintiff’s difficulties with his back continued and,
in March 2005, Plaintiff began receiving injections in his back.24
Although the exact date is unclear from the record, Dr. Shapiro
found that Plaintiff was “totally disabled from work activity” as
18
See Tr. 448-56.
19
See Tr. 447.
20
See Tr. 447.
21
See Tr. 444-45.
22
See Tr. 375.
23
See Tr. 443.
24
See Tr. 433-41.
4
early as September 2005.25
In October 2005, Plaintiff was seen for a increase in pain and
mechanical popping in his knees.26
John Feder, M.D. (“Dr. Feder”),
diagnosed Plaintiff with osteoarthritis in both knees.27
time, Plaintiff was able to walk unassisted.28
At the
In November 2005,
after continued difficulties with lower back pain, Dr. Shapiro
diagnosed Plaintiff with failed back syndrome.29
Plaintiff’s medical history is not documented again until
March 2008 when Plaintiff underwent another MRI of his spine.30 The
MRI revealed that Plaintiff had: (1) a “[s]light exaggeration of
the mid
lumbar
lordosis
with
diffuse
disc
bulging
and
facet
arthrosis contributing to mild central canal stenosis and bilateral
neural
foraminal
compression;”
(2)
narrowing
at
degenerative
L3-L4
changes
without
present
in
nerve
his
root
“lower
thoracic spine where there may be neural foraminal narrowing
without cord compression;” (3) a maintained posterior fusion and
preserved interbody fusion at L5-S1; (4) “no compromise of the
central canal or exiting nerve roots at L5-S1;” and (5) “no
25
See Tr. 431-32.
26
See Tr. 429-30.
27
See Tr. 429-30.
28
See Tr. 429-30.
29
See Tr. 426-27.
30
See Tr. 424.
5
abnormal
enhancement
[]
present
following
administration
of
intravenous contrast material.”31
Another MRI of Plaintiff’s back was taken in October 2008.32
The MRI revealed that Plaintiff had: (1) “mild disc degeneration at
multiple levels in [his] upper midthoracic spine;” (2) “disc
extrusions at nearly every level” with the largest being to the
left at T4-5; and (3) encroachments by the extrusions to a “mild
degree upon the left anterolateral aspect of [his] spinal cord.”33
In July 2009, Plaintiff went in for a check up with continued
back
pain.
Dr.
Shapiro
stated
that
Plaintiff’s
status
unchanged and he remained with pain and complete impairment.34
was
In
August 2009 Plaintiff went in for an appointment with Dr. Feder
complaining of pain in both knees.
Dr. Feder found that Plaintiff
had an internal derangement of his knee joint and prescribed a
physical therapy plan.35
The rest of Plaintiff’s medical history occurred well after
his date last insured (“DLI”) and, for the reasons discussed below,
will not be recounted here.
B.
Application to SSA
31
See Tr. 424.
32
See Tr. 423.
33
`
See Tr. 423.
34
See Tr. 421-22.
35
See Tr. 419-20.
6
Plaintiff applied for disability insurance benefits on April
9,
2013,
claiming
an
inability
to
work
condition occurred on February 6, 2004.36
since
his
disabling
Plaintiff claimed the
following disabling conditions: (1) depression; (2) anxiety; (3)
high blood pressure; (4) spinal fusion with stenosis and herniated
discs; (5) surgery on both knees; (6) hip problems; (7) arthritis;
and (8) chronic pain.37
On May 15, 2013, Plaintiff completed a
disability report, where his alleged conditions were not listed,
but he claimed to have difficulty sitting, standing, and walking.38
Plaintiff completed another disability report on October 2, 2013,
where again, he did not list his alleged conditions, but did state
that his abilities to sit, stand, kneel, squat, sleep, and remember
were affected and that he suffered from anxiety and depression.39
On July 11, 2013, due to insufficient evidence, the SSA found
Plaintiff not disabled at the initial level of review.40
On
September 20, 2013, Plaintiff requested a hearing before an ALJ.41
The ALJ granted Plaintiff’s request and scheduled the hearing on
August 7, 2014.42
36
See Tr. 13, 129-33, 141.
37
See Tr. 58.
38
See Tr. 141-43.
39
See Tr. 189-194.
40
See Tr. 61-62.
41
See Tr. 72.
42
See Tr. 73-109.
7
C.
Hearing
At the hearing, Plaintiff and a vocational expert, Cassandra
Humphreys (“Humphreys”), testified.43 Plaintiff was not represented
by an attorney.44
Plaintiff testified that he lived with his wife, son, and
daughter in a two-story house.45
Plaintiff attained a high school
education and completed a four-year journeyman program for sheet
metal workers.46
Plaintiff worked as a sheetmetal worker for ten
years before beginning his job at the United States Postal Service
(“USPS”)
as
a
mail
processing
machine
operator
in
1995.47
Plaintiff’s job as a machine operator required him to load and
unload trucks and machines, and push and pull large metal bins.48
Plaintiff testified that he first hurt himself in February
1996 when he slipped while working at the post office.49
As a
result of the fall, Plaintiff tore his meniscus in his right leg,
damaged his elbow and ankle, and bruised his back and head.50
Plaintiff returned to work a week or two later and re-injured his
43
See Tr. 32.
44
See Tr. 32.
45
See Tr. 36-37.
46
See Tr. 37-38.
47
See Tr. 38-39.
48
See Tr. 42.
49
See Tr. 40-41.
50
See Tr. 40-41.
8
right knee in July 1996.51
Plaintiff’s condition worsened and he
underwent surgery on his right knee in November 1996.52
Plaintiff
went back to work until 1999 when he had to have a second knee
surgery on his right knee.53
Plaintiff’s back had begun hurting
during this period of time.54
Plaintiff kept working and, in
January 2001, he required a spinal fusion surgery.55
Plaintiff was
out of work for six months to one year following the surgery.56 When
Plaintiff returned to work he was supposed to be assigned a
sedentary
position,
however,
there
were
none
workplace so he went back to his pre-surgery job.57
at
Plaintiff’s
The exertional
job requirements caused Plaintiff’s back pain to recur.58
Plaintiff testified that by 2004, the pain medications he was
taking were insufficient to sustain his level of work at the job.59
Plaintiff’s medications made him sleepy and he would occasionally
have numbness in his legs causing him to fall when he was walking
51
See Tr. 41.
52
See Tr. 41.
53
See Tr. 43.
54
See Tr. 43.
55
See Tr. 44.
56
See Tr. 44.
57
See Tr. 45.
58
See Tr. 45.
59
See Tr. 46.
9
or standing.60
Plaintiff claimed that he developed depression and
anxiety during this period.61 Plaintiff’s anxiety made it difficult
for him to sit in the back of vehicles, be in tight areas, or fly
in airplanes.62
Plaintiff’s superiors eventually became dissatisfied with his
job performance in light of his health issues and, in 2004,
Plaintiff was told that he had to seek workers’ compensation
benefits.63
Then, in 2009, Plaintiff was told that he had to file
for disability retirement or quit.64
for disability insurance benefits.65
Accordingly, Plaintiff filed
Prior to 2009, Plaintiff
claims he had been told that he could not file for Social Security
benefits when he was receiving workers’ compensation benefits.66 For
that reason, Plaintiff did not file for Social Security benefits
until after his DLI.67
Plaintiff testified that at the time of the hearing he had the
following problems:(1) his legs “gave out” on him regularly causing
him to fall; (2) constant pain in his knees, back, and head; (3)
60
See Tr. 46.
61
See Tr. 46.
62
See Tr. 46.
63
See Tr. 47-78.
64
See Tr. 48-49.
65
See Tr. 48-49.
66
See Tr. 48-49.
67
See Tr. 49.
10
“extreme” headaches; (4) trouble sleeping due to stress or pain;
(5) numbness and tingling from pinched nerves in his back;
randomly
falling
asleep;
(7)
anxiety;
and
(8)
(6)
depression.68
Plaintiff was receiving injections in his knees every six months
and in his back, as needed.69
The
ALJ
questioned
Humphreys
next.
The
ALJ
began
by
presenting a hypothetical where a person was able to: (1) do light
work; (2) lift ten pounds frequently and up to twenty pounds; and
(3) stand for six hours or sit for six hours.70
The hypothetical
also provided that the person would be able to sit and stand at
will and could not climb ladders, ropes, or scaffolds.71
Humphreys
testified that in such a situation the person would be unable to
return to Plaintiff’s past relevant work.72
She also opined that
Plaintiff’s skills did not transfer to any other occupations.73
Humphreys testified that based on the stipulated situation, the
hypothetical person with Plaintiff’s limitations would be able to
work as a shredder, laundry sorter, or garment sorter.74
68
See Tr. 50-52.
69
See Tr. 52.
70
See Tr. 54.
71
See Tr. 54.
72
See Tr. 54.
73
See Tr. 55.
74
See Tr. 55.
11
D.
Commissioner’s Decision
On July 1, 2015, the ALJ issued an unfavorable decision.75 The
ALJ found that Plaintiff last met the insured status requirements
of the Social Security Act on December 31, 2009, his DLI, and that
Plaintiff had not engaged in substantial gainful activity from
February 6, 2004, the alleged onset date, through his DLI.76
The
ALJ found the relevant period to be from February 6, 2004, to
Plaintiff’s DLI, and only considered evidence prior to Plaintiff’s
DLI.77
The ALJ recognized the following impairments as severe:
“degenerative disc disease with radiculopathy; post lumbar fusion
(January 2001); osteoarthritis of bilateral knees; and obesity.”78
The ALJ found that Plaintiff’s severe impairments, individually or
collectively,
did
not
meet
or
medically
equal
the
disorders
described in the listings of the regulations79 (the “Listings”).80
In particular, the ALJ considered Section 1.00 et seq., of the
Listings.81
The ALJ focused on Section 1.02, major dysfunction of
a joint, Section 1.04, disorders of the spine, and Section 1.00(Q),
75
See Tr. 10-27.
76
See Tr. 13, 15.
77
See Tr. 24.
78
See Tr. 15.
79
20 C.F.R. Pt. 404, Subpt. P, App. 1.
80
See Tr. 15.
81
See Tr. 16.
12
obesity.82
The
ALJ
found
that
Plaintiff
did
not
meet
the
requirements of Section 1.02 because he was able to “ambulate and
perform fine and gross movements effectively” during the relevant
period.83
The
ALJ
found
that
Plaintiff
did
not
meet
the
requirements of Section 1.04 because “he lack[ed] the requisite
nerve root
or
spinal
cord
compromise
with
motor
and
sensory
deficits and there is no evidence of spinal arachnoiditis or lumbar
spinal stenosis resulting in pseudoclaudication.”84
Finally, the
ALJ found that Plaintiff did not meet the requirements of Section
1.00(Q) because Plaintiff’s obesity did not have the requisite
impact on the functioning of Plaintiff’s bodily systems.85
In determining Plaintiff residual functional capacity (“RFC”),
the ALJ discussed Plaintiff’s injuries, symptoms, and medical
treatment.86
The ALJ found that “claimant’s statements concerning
the intensity, persistence and limiting effects of these symptoms
are not entirely credible.”
The ALJ found that Plaintiff could
perform light work consisting of “lifting and/or carrying twenty
pounds occasionally and ten pounds frequently; standing and/or
walking about six hours total in an eight-hour workday; and sitting
82
See Tr. 16-17.
83
See Tr. 16.
84
See Tr. 16.
85
See Tr. 16-17.
86
See Tr. 17-25.
13
about six hours total in an eight-hour workday.”87
Plaintiff’s
light work was subject to the conditions that he be allowed the
option to sit and stand at will and he could never climb ladders,
ropes, or scaffolds.88
The ALJ determined that, while Plaintiff
could not perform his past relevant work, he could perform other
jobs in the national or regional economy, such as shredder, laundry
sorter, and garment sorter, and was therefore not disabled.89
Plaintiff appealed the ALJ’s decision, and on January 4, 2017,
the Appeals Council denied Plaintiff’s request for review, thereby
transforming the ALJ’s decision into the final decision of the
Commissioner.90
After receiving the Appeals Council’s denial,
Plaintiff timely sought judicial review of the decision by this
court.91
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).
87
See Tr. 17.
88
See Tr. 17.
89
See Tr. 25-26.
90
See Tr. 3-8.
91
See Doc. 1, Pl.’s Compl.
14
A.
Legal Standard
In order to obtain disability benefits, a claimant bears the
ultimate burden of proving he 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 he 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 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 he has
done in the past must be found “not disabled;” and (5) if
the claimant is unable to perform his previous work as a
result of his impairment, then factors such as his age,
education, past work experience, and [RFC] must be
15
considered to determine whether 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
16
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) not all of Plaintiff’s
medical information was used to form a final opinion; (2) new
medical information shows that Plaintiff was disabled prior to his
DLI; and (3) personnel at the USPS incorrectly told Plaintiff that
he could not file for social security benefits while he was on
workers’ compensation.92
Defendant argues that the ALJ’s decision
is legally sound and is supported by substantial evidence.
A.
The ALJ Properly Considered Only Evidence Prior to 2010
The ALJ only considered medical evidence from before December
31, 2009, Plaintiff’s DLI.93 Plaintiff argues the ALJ erred because
he failed to consider all of Plaintiff’s medical information.
Plaintiff is correct that not all of his medical information
was considered.
However, that was not an error by the ALJ.
Material evidence relates to the period for which benefits were
denied, not to later-acquired disabilities or to post-hearing
deterioration of Plaintiff's condition.
F.2d 180, 183 (5th Cir. 1985).
Johnson v. Heckler, 767
Accordingly, any medical records
dated after Plaintiff’s DLI are not material to the question of
92
See Doc. 1, Pl.’s Compl.
93
See Tr. 24.
17
whether Plaintiff was disabled before his DLI.
The ALJ did not err
in refusing to consider Plaintiff’s medical records dated after
Plaintiff’s DLI.
B.
Plaintiff’s New Medical Evidence Cannot Be Considered
Plaintiff
attached
numerous
new
medical
records
to
his
complaint and argues that this new medical evidence shows that
Plaintiff was disabled prior to his DLI.94
The court may remand a case to the Commissioner for further
action if there is a showing that new evidence not in the record
"is material and that there is good cause for the failure to
incorporate such evidence into the record in a prior proceeding."
42 U.S.C. § 405(g).
"For new evidence to be material, there must
exist the `reasonable possibility that it would have changed the
outcome of the [Commissioner's] determination'" had the evidence
been presented.
Chaney v. Schweiker, 659 F.2d 676, 679 (5th Cir.
1981).
The majority of the new medical evidence is immaterial because
it dates well after Plaintiff’s DLI.95
Heckler, 767 F.2d at 183.
However, some of the new evidence is within the relevant time
period.96
The new evidence includes diagnoses of: (1) “[s]tatus
post lumbar decompression and fusion;” (2) “[l]umbar sprain;” (3)
94
See Doc. 1-1, Ex. 1 to Pl.’s Compl., New Medical Records.
95
See id.
96
See id.
18
“[l]umbar degenerative disc disease;” (4) “[o]steoarthritis, right
knee;” (5) “[s]tatus post right knee arthroscopy and partial medial
meniscectomy;” (6) “[b]ilateral knee osteoarthritis;” (7) “[r]ight
sacroiliac
joint
dysfunction;”
(8)
“[b]ilateral
radiculopathy;” and (9) “chronic back pain.”97
lumbar
With the exception
of the diagnosis of right sacroiliac joint dysfunction, these
diagnoses are also found in the medical evidence that the ALJ
considered.98
The diagnoses of right sacroiliac joint dysfunction
occurred on July 1, 2003, and September 11, 2003, during which time
Plaintiff was able to maintain his employment.99
The medical
evidence considered by the ALJ shows that in visits occurring in
early 2004 and throughout 2005, Plaintiff was no longer diagnosed
with sacroiliac joint dysfunction.100
Hence, even if the 2003
diagnosis was considered by the ALJ, it would not change his
finding of not disabled.
The new evidence also includes: (1) information regarding
Plaintiff’s occupations before he quit working; (2) forms filled
out by Plaintiff’s physician for worker’s compensation following
his spinal fusion surgery; and (3) a 2004 letter from Plaintiff to
the U.S. Department of Labor accusing his boss of refusing to
97
See id. pp. 21-22, 65-70, 72-73, 77-82.
98
See Tr. 427, 430, 432, 435-36, 438, 440, 443.
99
See Doc. 1-1, Ex. 1 to Pl.’s Compl., New Medical Records pp. 65-70.
100
See Tr. 375-78, 432, 435-36, 438, 440, 443-45.
19
accept his workers’ compensation injury recurrence form.101 The new
evidence would not have influenced the ALJ’s decision had it been
presented.
Accordingly, all of the new evidence attached to
Plaintiff’s complaint is immaterial and does not necessitate that
this case be remanded.
C.
The Court May Not Consider What USPS Personnel Told Plaintiff
Plaintiff alleges that USPS personnel told him that he could
not file for social security benefits while he was receiving
workers’ compensation benefits. Plaintiff’s argument falls outside
the scope of the court’s review.
The ALJ’s decision was based on
a determination that Plaintiff was not disabled prior to his DLI
and did not rest on the timing of his application.
Thus, even if
the court considered Plaintiff’s argument, Plaintiff was not harmed
by the alleged false statement by USPS personnel.
D.
Substantial Evidence in the Record Supports the ALJ’s Decision
Plaintiff
argues
generally
that
evidence was considered by the ALJ.102
not
all
of
his
medical
The court has determined
that the ALJ properly disregarded evidence post-dating Plaintiff’s
DLI. The court liberally construes Plaintiff’s argument to be that
the ALJ’s decision was not supported by substantial evidence in the
record.
101
The ALJ conducted a thorough analysis of Plaintiff’s
See id. pp. 40-41, 64, 71, 74.
102
See Doc. 1, Pl.’s Compl. p. 1; Docs. 16 & 19, Pl.’s Cross Mot. for
Summ. J. pp. 1-2.
20
medical records and Plaintiff does not point to a specific issue.
Accordingly, the court conducts a general review of the ALJ’s
factual and legal conclusions.
It
is
undisputed
that
Plaintiff
was
not
engaging
in
a
substantial gainful activity, step one of the five-step process.
Similarly,
it
is
undisputed
that
Plaintiff
impairments, step two of the five-step process.
has
severe
Plaintiff’s
medical evidence from before 2010 all pertains to knee and back
limitations, and documents his weight.
found
that
Plaintiff’s
severe
Thus, the ALJ properly
impairments
consisted
of:
degenerative disc disease with radiculopathy; (2) post lumbar
fusion; (3) osteoarthritis of bilateral knees; and (4) obesity.103
Because there was no medical evidence from the relevant period of
Plaintiff’s other alleged conditions such as anxiety or depression,
the ALJ
properly
requirements
for
did not
those
consider
conditions
whether Plaintiff
under
the
met
Listings.
the
In
accordance with step three of the five-step process, the ALJ next
considered whether Plaintiff met the requirements in the Listings
Sections 1.02 and 1.04 for knee and back disabilities, and Section
1.00(Q) for obesity.
1.
Section 1.02 - Major Dysfunction of a Joint
Section 1.02 of the Listings requires that the dysfunction of
the joint include the “[i]nvolvement of one major peripheral
103
See Tr. 15.
21
weight-bearing joint (i.e., hip, knee, or ankle), resulting in
inability to ambulate effectively as defined in 1.00B2b” or the
“[i]nvolvement
of
one
major
peripheral
joint
in
each
upper
extremity (i.e., shoulder, elbow, or wrist-hand), resulting in
inability to perform fine and gross movements effectively as
defined in 1.00B2c.”
“Ineffective
insufficient
20 C.F.R. Pt. 404, Subpt. P, App. 1 § 1.02.
ambulation
lower
extremity
is
defined
generally
functioning
.
.
.
as
having
to
permit
independent ambulation without the use of a hand-held assistive
device(s) that limits the functioning of both upper extremities.”
20 C.F.R. Pt. 404, Subpt. P, App. 1 § 1.00(b)(1).
“Inability to
perform fine and gross movements effectively means an extreme loss
of function of both upper extremities . . . .”
20 C.F.R. Pt. 404,
Subpt. P, App. 1 § 1.00(c).
The ALJ found that Plaintiff did not meet the requirements for
Section 1.02 of the Listings because he was “able to ambulate and
perform fine and gross movements effectively” prior to his DLI.104
A substantial amount of Plaintiff’s medical history prior to
2010 shows that he was consistently able to ambulate effectively
and that he did not use an assistive device.105
Plaintiff had
difficulty with heel-to-toe walking at one appointment.106 However,
104
See Tr. 16.
105
See Tr. 418, 421, 427, 429.
106
See Tr. 438.
22
that alone is not enough to meet the Listings’ definition of
ineffective ambulation.
Additionally, Plaintiff was able to heel-
to-toe walk without issue approximately three months later.107
The
court finds that there is substantial evidence supporting the ALJ’s
conclusion that Plaintiff was able to ambulate effectively.
There is no medical evidence from prior to 2010 that indicates
that
Plaintiff
had
any
issues
with
either
upper
extremity.
Accordingly, the court finds that there is substantial evidence
supporting the ALJ’s conclusion that Plaintiff was able to perform
fine and gross movements effectively.
For these reasons, the court finds that substantial evidence
supports the ALJ’s conclusion that Plaintiff did not meet the
requirements for Section 1.02 of the Listings.
2.
Section 1.04 - Disorders of the Spine
For Plaintiff’s spine and back impairments to qualify under
Section 1.04 of the Listings it is necessary that one of the
following three specific issues be present:
A. Evidence of nerve root compression characterized by
neuro-anatomic distribution of pain, limitation of motion
of the spine, motor loss (atrophy with associated muscle
weakness or muscle weakness) accompanied by sensory or
reflex loss and, if there is involvement of the lower
back, positive straight-leg raising test (sitting and
supine); or
B. Spinal arachnoiditis, confirmed by an operative note
or pathology report of tissue biopsy, or by appropriate
medically acceptable imaging, manifested by severe
107
See Tr. 433.
23
burning or painful dysesthesia, resulting in the need for
changes in position or posture more than once every 2
hours; or
C.
Lumbar
spinal
stenosis
resulting
in
pseudoclaudication,
established
by
findings
on
appropriate medically acceptable imaging, manifested by
chronic nonradicular pain and weakness, and resulting in
inability to ambulate effectively, as defined in 1.00B2b.
20 C.F.R. Pt. 404, Subpt. P, App. 1 § 1.04(a)-(c).
The ALJ found
that Plaintiff does not meet the requirements of Section 1.04
because he lacked the requisite motor and sensory deficits and
there was “no evidence of spinal arachnoiditis or lumbar spinal
stenosis resulting in pseudoclaudication.”108
There is no medical evidence that Plaintiff suffered from
spinal arachnoiditis.
While there is evidence that Plaintiff
suffered from spinal stenosis, there is no medical evidence that
Plaintiff’s stenosis resulted in pseudoclaudication.109 Furthermore,
as discussed above, there is no medical evidence that Plaintiff was
unable to ambulate effectively.
Accordingly, the ALJ was correct
in finding that Plaintiff did not meet the requirements of Section
1.04(b) or Section 1.04(c).
With regards to Section 1.04(a), the ALJ found that Plaintiff
lacked
the
Plaintiff’s
reflexes,
section’s
medical
sensation,
108
evidence
and
motor
and
sensory
deficits.
consistently
reveals
that
pulses
See Tr. 16.
109
required
See Tr. 424.
24
were
intact
in
his
his
lower
extremities and that his motor power was always rated as a five out
of five by his doctors.110
Accordingly, the court finds that the
ALJ’s determination that Plaintiff does not meet the requirements
of Section 1.04(a) is supported by substantial evidence.
For these reasons, the ALJ properly found that Plaintiff does
not meet the requirements of Section 1.04.
3.
Section 1.00(Q) - Obesity
There is no Listing specifically for obesity alone.
However,
the Listings state that “when determining whether an individual
with obesity has a listing-level impairment or combination of
impairments, and when assessing a claim at other steps of the
sequential evaluation process . . . adjudicators must consider any
additional and cumulative effects of obesity.”
Subpt. P, App. 1 § 1.04(a)-(c).
20 C.F.R. Pt. 404,
The ALJ found that Plaintiff was
obese, but that “there is no evidence . . . of the requisite impact
on musculoskeletal, respiratory, cardiovascular, or other body
system
functioning.”111
Plaintiff’s
weight, but do not go beyond that.
medical
records
show
his
Given that there is no evidence
that Plaintiff has a Listing-level impairment or that his obesity
had any effect that gave him a Listing-level impairment, the ALJ
correctly determined that Plaintiff’s obesity does not meet the
requirements of any Listing.
Thus, Plaintiff cannot be considered
110
See Tr. 418, 421, 426, 429, 431, 433, 436, 438, 440, 442.
111
See Tr. 16-17.
25
disabled under step three of the five-step process and the court
must proceed to the remaining steps.
4.
Plaintiff Is Not Capable of Performing Past Work
It is undisputed that Plaintiff is unable to perform his
previous
work
due
to
his
severe
impairments.
Accordingly,
Plaintiff cannot be found to be not disabled under step four of the
five-step process and the court proceeds to the fifth step.
5.
Plaintiff Is Capable of Doing Other Work
The final question remaining before the court is whether
substantial evidence exists that Plaintiff can do other work
considering Plaintiff’s age, education, past work experience, and
RFC.
The ALJ determined that Plaintiff had the RFC “to perform
light work
as
defined
in
20
CFR
404.1567(b)
(lifting
and/or
carrying twenty pounds occasionally and ten pounds frequently;
standing and/or walking about six hours total in an eight-hour
workday; and
workday.”112
sitting
about
six
hours
total
in
an eight-hour
However, the ALJ found that Plaintiff would have to
“be afforded the option to sit and stand at will” and that he could
“never climb ladders, ropes, or scaffolds.113
The ALJ found that while Plaintiff’s impairments could cause
his
alleged
symptoms,
112
See Tr. 17.
113
Plaintiff’s
See Tr. 17.
26
“statements
concerning
the
intensity, persistence and limiting effects of these symptoms are
not entirely credible . . . .”114
The ALJ also gave little weight
to Dr. Shapiro’s opinion that Plaintiff was totally disabled from
work activity and could not return to work until further notice due
to his back condition.115
because it:
(1)
was
The ALJ gave the opinion little weight
“not
supported
by
the
objective
medical
evidence”; (2) the opinion was on issues “specifically reserved
under the Regulations to the Commissioner;” and (3) the opinion was
not entirely relevant because the question is whether Plaintiff
could work at all, not whether he could go back to his old job.116
The ALJ must evaluate every medical opinion in the record and
decide what weight to give each.
See 20 C.F.R. § 404.1527(c).
Generally, the ALJ will give more weight to medical sources who
treated the claimant because “these sources are likely to be the
medical professionals most able to provide a detailed, longitudinal
picture of [the claimant’s] medical impairment(s) and may bring a
unique perspective to the medical evidence that cannot be obtained
from the objective medical findings alone or from reports of
individual examinations.”
20 C.F.R. § 404.1527(c)(2); see also
Greenspan, 38 F.3d at 237 (quoting Scott v. Heckler, 770 F.2d 482,
485 (5th Cir. 1985)); SSR 96-5p, 1996 WL 374183, at *2.
114
See Tr. 18.
115
See Tr. 21, 22, 426-428.
116
See Tr. 21-22.
27
The ALJ is required to give good reasons for the weight given
a treating source’s opinion.
20 C.F.R. § 404.1527(c)(2);
SSR 96-
2p, 1996 WL 374188, at *5.
When the determination or decision . . . is a denial[,]
. . . the notice of the determination or decision must
contain specific reasons for the weight given to the
treating source’s medical opinion, supported by the
evidence in the case record, and must be sufficiently
specific to make clear to any subsequent reviewers the
weight the adjudicator gave to the treating source’s
medical opinion and the reasons for that weight.
SSR 96-2p, 1996 WL 374188, at *5.
The regulations require that,
when a treating source’s opinion on the nature and severity of a
claimant’s impairments “is well-supported by medically acceptable
clinical
and
laboratory
diagnostic
techniques
and
is
not
inconsistent with the other substantial evidence” in the case
record, it is to be given controlling weight.
20 C.F.R. §
404.1527(c)(2); SSR 96-2p, 1996 WL 374188, at *1.
When the ALJ does not give a treating physician’s opinion
controlling
weight,
he
must
apply
the
following
nonexclusive
factors to determine the weight to give the opinion: (1) the
“[l]ength of the treatment relationship and the frequency of
examination;”
(2)
the
“[n]ature
and
extent
of
the
treatment
relationship;” (3) the relevant medical evidence supporting the
opinion; (4) the consistency of the opinion with the remainder of
the medical record; and (5) the treating physician’s area of
specialization.
20 C.F.R. § 404.1527(c)(2).
However, the ALJ is
only required to consider these factors in deciding what weight to
28
give a medical source opinion; he is not required to record in
writing every step of the process. 20 C.F.R. § 404.1527(c)(“Unless
we give a treating source’s opinion controlling weight . . . we
consider all of the following factors in deciding the weight we
give to any medical opinion.”)(emphasis added).
Here, the ALJ considered the opinions of Dr. Shapiro, only
giving them little weight for a multitude of reasons as set out in
the ALJ’s decision.
Namely, the ALJ found the following evidence
to be indicative that Plaintiff was not completely disabled: (1)
Plaintiff walked unassisted and was able to heel-to-toe walk; (2)
Plaintiff’s “motor power” was consistently rated five out of five;
(3) Plaintiff’s “deep tendon reflexes were 2+;” (4) “[t]here were
no upper motor neuron findings;” (5) Plaintiff “did not have pain
with hip range of motion;” (6) Plaintiff’s sensation was intact;
(7) “no tensions signs were elicited;” and (8) Plaintiff “had no
pain with SI joint stress.”117
The ALJ articulated his reasoning
and the reasons he provided demonstrate that his findings as to Dr.
Shapiro’s
opinions
and
Plaintiff’s
RFC
were
supported
by
substantial evidence.
Humphreys, the vocational expert, testified that a person with
Plaintiff’s age during the relevant period, education, past work
experience, and RFC, would be capable of working as a shredder,
117
See Tr. 24.
29
laundry sorter, and garment sorter.118
Based on this testimony, the
ALJ concluded that through Plaintiff’s DLI, Plaintiff “was capable
of making a successful adjustment to other work that existed in
significant numbers in the national economy.”119
Accordingly, the
ALJ found that Plaintiff was not disabled through his DLI.120
There is no evidence suggesting that Humphreys’ conclusion was
incorrect.
Accordingly, substantial evidence supports the ALJ’s
conclusion that Plaintiff was capable of doing other work and,
therefore, Plaintiff was not disabled through his DLI.
IV. Conclusion
Based on the foregoing, the court DENIES Plaintiff’s motion
and GRANTS Defendant’s.
SIGNED in Houston, Texas, this 24th day of October, 2018.
______________________________
U.S. MAGISTRATE JUDGE
118
See Tr. 54-55.
119
See Tr. 26.
120
See Tr. 27.
30
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