Martinez v. Colvin
Filing
10
MEMORANDUM AND ORDER (Signed by Judge Nancy F Atlas) Parties notified.(sashabranner, 4)
United States District Court
Southern District of Texas
ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
CHRISTINE MARTINEZ,
Plaintiff,
v.
NANCY A. BERRYHILL, ACTING
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.1
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September 28, 2018
David J. Bradley, Clerk
CIVIL ACTION NO. 4:17-2507
MEMORANDUM AND ORDER
In this case appealing a denial of Social Security benefits, Plaintiff Christine
Martinez has filed a Motion for Summary Judgment and Supporting Brief [Doc. # 7]
(“Plaintiff’s Motion”). Defendant Nancy A. Berryhill also has filed a Motion for
Summary Judgment [Doc. # 8], which also constitutes her brief in support of the
motion [Doc. # 8] as well as her response to Plaintiff’s Motion for Summary
Judgment [Doc. # 8] (collectively, “Defendant’s Motion”). The motions are ripe
for decision.
Having considered the parties’ briefing, the applicable legal
authorities, and all matters of record, the Court concludes that Plaintiff’s Motion
1
Nancy A. Berryhill is now the Acting Commissioner of Social Security and
therefore is substituted automatically for Acting Commissioner Carolyn W. Colvin,
the Defendant named in Plaintiff’s Complaint. See FED. R. CIV. P. 25(d).
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should be granted, that Defendant’s Motion should be denied, and that the matter
should be remanded to the Commissioner for further proceedings.
I.
BACKGROUND
A.
Procedural Background
Plaintiff Martinez filed an application with the Social Security Administration
(“SSA”) on February 4, 2015, seeking disability benefits under Title II and
supplemental security income (“SSI”) benefits under Title XVI. Administrative
Record [Doc. # 5] (“R.”) 27.2 She alleges onset of disability on November 15, 2014.
Id. After being denied benefits initially on July 15, 2015 and upon reconsideration
on August 4, 2015, the Plaintiff filed a written request for a hearing before
Administrative Law Judge (“ALJ”) Kelly Matthews. Id.
On November 21, 2016, the ALJ held a hearing. R. 49-79. Plaintiff was
represented by counsel, appeared in person and testified. R. 27. The ALJ also
heard testimony from independent vocational expert Herman Litt and medical expert
Albert I. Oguejiofor, M.D. Id.
On December 16, 2016, the ALJ denied Plaintiff’s request for benefits. R. 2743. On June 8, 2017, the Appeals Council denied Plaintiff=s request for review.
2
R.
Throughout this Memorandum, cites to pages in the Administrative Record refer to
the page numbers in the bottom right corner of each page.
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1-7. The Plaintiff filed this case on August 14, 2017, seeking judicial review of the
Commissioner’s denial of her claim for benefits. Complaint [Doc. # 1].
B.
Factual Background
Plaintiff Martinez previously was employed by Southwest Airlines as a
reservationist. R. 56-57. The relevant period for inquiry is from November 15,
2014, her alleged onset date, through December 16, 2016, when the ALJ denied her
application for benefits.
Plaintiff did not work during the relevant period because she was on medical
leave from Southwest Airlines starting on November 16, 2014, due to five invasive
surgical procedures, among other issues. She applied for disability benefits based
on multiple impairments including degenerative disc disease of the cervical and
lumbar spines, degenerative joint disease of the bilateral knees, cancer of the salivary
gland, and leukemia. Throughout the period, she was treated by Terry Newman,
M.D., her primary care physician, along with multiple other physicians.
Records from September 2014, just before the relevant period, demonstrate
that Plaintiff suffered from osteoarthritis (spondylosis), degenerative changes in the
cervical and lumbar spine, straightening of the normal cervical lordosis (curvature of
the spine), annular tears, and cervical disc protrusions. R. 304-06 (Exhibit 2F).
These diagnoses were supported by Magnetic Resonating Image (“MRI”) testing of
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her neck and spine, as well as a total bone body scan. R. 304-05, 323 (Exhibit 2F).
Plaintiff was scheduled for surgery on her cervical spine on November 17, 2014.
R. 38.
On November 17, 2014, Dr. Richard Westmark, M.D., a neurosurgeon,
performed an anterior cervical discectomy and fusion, or “ACDF,” to correct
Plaintiff=s cervical spondylosis and stenosis.
R. 755-58 (Exhibit 10F).
Dr.
Westmark’s notes preceding the surgery stated that Plaintiff “appear[ed] in acute
distress,” had decreased reflexes and range of motion in her neck, and complained
that her hands were numb and the pain was “unbearable.” R. 759-60. His findings
during the procedure included “marked spondylosis.” R. 757. Dr. Westmark wrote
a letter opining that, because of her surgery, Plaintiff would be unable to work from
November 16 through December 29, 2014. R. 766-67.
Plaintiff did not return to work in January 2015 because her recovery from
surgery was complicated and prolonged by a bacterial infection that developed after
the surgery. See R. 398-400 (Exhibit 3F) (primary care physician, Dr. Newman,
notes complications from surgery). In particular, Plaintiff developed post-surgery
symptoms including hoarseness, paralysis on the right side of her face, and hearing
loss.
Dr. Westmark therefore signed another letter requesting that Plaintiff’s
medical leave be extended through January 26, 2015, noting “complications” from
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her ACDF surgery and stating that he had referred her to an ear, nose and throat
(“ENT”) specialist. R. 751-72 (Exhibit 10F).
Throughout the first half of 2015, Plaintiff received follow up care from her
neurosurgery.
R. 683-95 (Exhibit 9F); R. 696-781 (Exhibit 10F).
She also
continued follow up care with her primary care physician, Dr. Newman, for
medications and laboratory testing. See, e.g., R. 621-22 (Exhibit 8F) (April 23,
2015). On January 12, 2015, Plaintiff saw James Grant, M.D., of Texas ENT
Specialists for treatment of her post-surgical complaints, including shooting outer ear
pain and diminished voice quality.
R. 575-93 (Exhibit 6F).
Dr. Grant noted
hoarseness, ringing in her ears, hearing loss in both ears, and occasional trouble
swallowing.
R. 585.
He ordered an MRI and CT scan.
At a follow up
appointment on January 20, Dr. Grant stated that Plaintiff’s symptoms, including pain
and swollen lymph nodes, were “related to the surgical trauma,” which otherwise
appeared to be healing appropriately.
R. 420-21 (Exhibit 3F).
However, on
February 8, 2015, Dr. Grant noted that Plaintiff’s MRI examination “showed non
pathological lymphadenopathy” and that “a lesion in the right parotid was identified.”
R. 604-06 (Exhibit 7F). He scheduled a fine needle aspiration (“FNA”) of her right
parotid (salivary) gland, in addition to medication. R. 606.
On March 25, 2015, Dr. Newman referred Plaintiff to pain management
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specialists because, despite her neck surgery, her pain had become worse. R. 398400 (Exhibit 3F). Dr. Newman’s records indicate that Plaintiff’s November surgery
had been complicated by a bacterial infection and a cut nerve, that her hearing had
been impacted and that her throat was very sensitive. R. 398.
On April 20, 2015, Dr. Grant performed an FNA of Plaintiff’s right parotid
(salivary) gland and diagnosed Plaintiff with a benign Warthin’s tumor. R. 444-46
(Exhibit 4F). See R. 576-78 (Exhibit 6F) (April 22, 2015 appointment).
In April 2015, Dr. Westmark, Plaintiff’s neurosurgeon, signed a form stating
that Plaintiff would not be able to return to work until August 26, 2015. R. 694
(Exhibit 9F). He stated that he had referred her to rheumatology. R. 694.
On July 1, 2015, Dr. Westmark performed surgery on Plaintiff=s right hand to
relieve her symptoms of carpal tunnel syndrome. R. 730-31 (Exhibit 10F). Plaintiff
had originally been diagnosed with carpal tunnel syndrome in 2011. R. 546-49
(Exhibit 5F).
On September 23, 2015, Dr. Westmark performed surgery on
Plaintiff’s left hand to relieve her carpal tunnel symptoms. R. 720-27 (Exhibit 10F).
Dr. Westmark signed a form dated September 18, 2015, stating that, because
of Plaintiff=s surgery to her cervical spine on November 17, 2014, in addition to her
two surgeries for carpal tunnel syndrome, and the required recovery periods, Plaintiff
would be unable to return to work until October 26, 2015. R. 728 (Exhibit 10F).
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In October and November, 2015, Plaintiff continued to follow up with Dr.
Newman and Dr. Grant. R. 786, 789 (Exhibit 11F); R. 1195 (Exhibit 24F).
In November 10, 2015, Dr. Grant authored a letter requesting that Plaintiff’s
leave from Southwest Airlines be extended “for another [six] months” due to the
complications associated with her November 2014 surgery and the treatment of her
parotid gland. R. 1311 (Exhibit 28F). The letter states that, since Dr. Grant began
treating her in January 2015, Plaintiff had been “on disability” and had “significant
issues with swallowing, globus pharyngeus, hoarseness, and dramatic inflammatory
process that has resulted in prominent lymphadenopathy,” stating that some issues
had resolved but “others have not.” R. 1311. Dr. Grant stated that Plaintiff was
being scheduled for surgical removal of the mass “in the deep lobe of the parotid
gland.” R. 1311. He noted, “This should be a long case and she will require a
recovery period,” recommending an extension of her “disability” for another six
months. R. 1311.
On December 8, 2015, Dr. Grant performed surgery to remove the mass from
Plaintiff’s parotid gland. R. 1191-93, 1199-1200 (Exhibit 24F). The pathology
findings on the mass were “consistent with chronic lymphocystic leukemia/small
lymphocytic lymphoma.” R. 1202. Dr. Grant’s follow-up records from December
23, 2015, state that Plaintiff “need[ed] oncology referral for chronic lymphocytic
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leukemia.” R. 1190.
Plaintiff followed up with Dr. Newman in March and May 2016 for
medications and laboratory testing. R. 1089-93 (Exhibit 20F). Dr. Newman noted
that her chronic lymphocytic leukemia had not achieved remission. R. 1091. He
referred Plaintiff to a pain management clinic for physical therapy. R. 1091. He
also adjusted her medications, including prescribing acetaminophen with codeine as
needed for “severe pain.” R. 1091.
On June 1, 2016, Dr. Jeffrey Lee at the Innova Pain Center treated Plaintiff for
her neck pain. R. 892-93 (Exhibit 12F). Dr. Lee assessed Plaintiff with chronic
pain syndrome, among other impairments. R. 893. He noted that her pain was
“constant” and “stable,” with an average intensity of 9/10, and was worsened by
activity. R. 892. His treatment plan included medial branch blocks (injections) in
Plaintiff’s cervical spine to alleviate the axial neck pain and lumbar epidural steroid
injections for the pain radiating down her left leg. R. 893. Plaintiff received
injections in June and July 2016. R. 909 (Exhibit 13F); R. 974, 976 (Exhibit 15F).
On June 6, 2016, Plaintiff followed up with Dr. Grant at Texas ENT
Specialists. R. 1185. She reported that she continued to suffer from hearing loss,
numbness, ringing in her ears, shooting ear pain, and hoarseness. R. 1185. Dr.
Grant assessed her with a “[n]eoplasm of uncertain behavior of [the] parotid salivary
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gland,” “[c]hronic lymphoctic leukemia,” and “[p]arotid hypertropy.”
(Exhibit 24F).
R. 1186
He ordered a CT scan, which revealed a nodule in Plaintiff=s parotid
gland. R. 1057-58 (Exhibit 16F) (noting “[m]alignant lymphoma”).
In a letter dated June 13, 2016, Dr. Grant advocated for additional medical
leave for Plaintiff. R. 1312 (Exhibit 28F). Dr. Grant stated that due to the multiple
underlying issues, including chronic lymphocytic leukemia and the “complicated
post-operative course” following Plaintiff=s anterior cervical disc surgery, including
“severe post-operative neuralgia/neuropathy to the neck region,” Plaintiff was not
medically cleared to return to work. R. 1312.
On July 25, 2016, Plaintiff sought treatment at an Emergicare facility in
Houston for bilateral knee pain. R. 1074-81 (Exhibit 19F); R. 1160-78 (Exhibit
23F).
In August 2016, Plaintiff followed up with Conrad Fischer, M.D., for
treatment of her knee pain. R. 1110-45 (Exhibit 21F). After radiological and MRI
examinations, Dr. Fischer diagnosed Plaintiff with a complex tear of the medial
meniscus in her right knee, in addition to bilateral chondromalecia of the patella.
R. 1122-23.
On September 9, 2016, Dr. Fischer performed a medial menisectomy and
patellar chondroplasty on Plaintiff.
R. 1135-36 (Exhibit 21F).
After surgery,
Plaintiff received steroid injections and physical therapy. R. 1257-59 (Exhibit 25F).
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At a follow up appointment on September 27, 2016, Dr. Fischer noted that Plaintiff
was asymptomatic in both knees. R. 1124-25 (Exhibit 21F). However, on October
21, 2016, Plaintiff again had pain in her left knee, with progressive swelling and fluid
in her calf. R. 1127-30 (Exhibit 21F). On October 31, 2016, Dr. Fischer noted pain
in both knees. R. 1131-33 (Exhibit 21F).
During September 2016, Plaintiff continued to follow up with Dr. Newman.
R. 1086-88 (Exhibit 20F). In November 2016, she followed up for treatment of her
back pain with Dr. Lee, who administered more injections. R. 1153 (Exhibit 22F).
She also followed up with Dr. Grant for her parotid mass. R. 1307 (Exhibit 28F).
Plaintiff appeared for an administrative hearing before the ALJ on November
21, 2016. R. 27. She testified about her ongoing medical conditions, including
neck and back pain, ringing in her ears, sharp ear pain, hoarseness, numbness in her
face and leg, and leukemia. R. 54-60. She stated that the effects of the injections
for pain wore off in one to three days, and that her pain level was 8/10. R. 58-59.
Dr. Oguejiofor, the medical expert utilized by the ALJ, testified about Plaintiff’s
degenerative disc disease of the cervical spine, degenerative disc disease of the
lumbar spine, chronic pain syndrome, degenerative joint disease of both knees, cancer
of the salivary gland, and chronic lymphocytic leukemia. R. 69-73.
II.
SUMMARY JUDGMENT STANDARD
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Rule 56 of the Federal Rules of Civil Procedure mandates the entry of summary
judgment, after adequate time for discovery and upon motion, against a party who
fails to make a sufficient showing of the existence of an element essential to the
party=s case, and on which that party will bear the burden at trial.
Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th
Cir. 1994) (en banc). AThe court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.@ FED. R. CIV. P. 56(a). See Celotex Corp., 477 U.S.
at 322B23; Weaver v. CCA Indus., Inc., 529 F.3d 335, 339 (5th Cir. 2008).
“An
issue is material if its resolution could affect the outcome of the action. A dispute
as to a material fact is genuine if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” DIRECT TV Inc. v. Robson, 420 F.3d
532, 536 (5th Cir. 2006) (internal citations and quotation marks omitted).
III.
STANDARD OF REVIEW
Judicial review of the Commissioner=s denial of disability benefits is limited to
two inquiries: First, whether the final decision is supported by substantial evidence
on the record as a whole and, second, whether the Commissioner applied the proper
legal standards to evaluate the evidence. See Copeland v. Colvin, 771 F.3d 920, 923
(5th Cir. 2014); Audler v. Astrue, 501 F.3d 446, 447 (5th Cir. 2007); Perez v.
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Barnhart, 415 F.3d 457, 461 (5th Cir. 2005); Masterson v. Barnhart, 309 F.3d 267,
272 (5th Cir. 2002).
ASubstantial evidence@ is relevant evidence that a reasonable
mind might accept as adequate to support a conclusion.
Copeland, 771 F.3d at 923;
Audler, 501 F.3d at 447 (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)).
It is more than a mere scintilla and less than a preponderance.
Copeland, 771 F.3d
at 923; Perez, 415 F.3d at 461; Newton v. Apfel, 209 F.3d 448, 452 (5th Cir. 2000).
When applying the substantial evidence standard on review, the court
scrutinizes the record to determine whether such evidence is present.
Perez, 415
F.3d at 461; Myers v. Apfel, 238 F.3d 617, 619 (5th Cir. 2001); Greenspan v. Shalala,
38 F.3d 232, 236 (5th Cir. 1994). In determining whether substantial evidence of
disability exists, the court weighs four factors: (1) objective medical evidence; (2)
diagnoses and opinions; (3) the claimant=s subjective evidence of pain and disability;
and (4) the claimant’s age, education, and work history.
Perez, 415 F.3d at 462
(citing Wren v. Sullivan, 925 F.2d 123, 126 (5th Cir. 1991)). If the Commissioner’s
findings are supported by substantial evidence, they are conclusive and must be
affirmed. Id. at 461 (citing Richardson, 402 U.S. at 390); Watson v. Barnhart, 288
F.3d 212, 215 (5th Cir. 2002). Alternatively, a finding of no substantial evidence is
appropriate if no credible evidentiary choices or medical findings support the
decision. Boyd v. Apfel, 239 F.3d 698, 704 (5th Cir. 2001). The court may not,
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however, re-weigh the evidence, try the issues de novo, or substitute its judgment for
that of the Commissioner.
Audler, 501 F.3d at 447; Masterson, 309 F.3d at 272.
In short, conflicts in the evidence are for the Commissioner, not the courts, to resolve.
Perez, 415 F.3d at 461; Masterson, 309 F.3d at 272.
IV.
ANALYSIS
A.
Statutory Basis for Benefits
Martinez applied for both Social Security disability insurance and SSI benefits.
Social Security disability insurance benefits are authorized by Title II of the Social
Security Act. The disability insurance program provides income to individuals who
are forced into involuntary, premature retirement, provided they are both insured and
disabled, regardless of indigence. 42 U.S.C. § 423(c) (defining “insured”); id.
§ 423(d) (defining “disability”).
SSI benefits are authorized by Title XVI of the Social Security Act, and
provide an additional resource to the aged, blind and disabled to assure that their
income does not fall below the poverty line.
this purpose).
See 20 C.F.R. § 416.110 (describing
Eligibility for SSI is based on proof of disability and indigence.
42 U.S.C. § 1382c(a)(3) (defining “disabled”); id. § 1382(a) (setting for the financial
requirements). A claimant applying to the SSI program cannot receive payment for
any period of disability predating the month in which she applies for benefits, no
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matter how long she has actually been disabled.
Brown v. Apfel, 192 F.3d 492, 495
n.1 (5th Cir. 1999); 20 C.F.R. § 416.335. Thus, the month following an application
fixes the earliest date from which SSI benefits can be paid.
Eligibility for SSI,
unlike eligibility for Social Security disability benefits, is not dependent on insured
status.
Although these are separate and distinct programs, applicants to both programs
must prove “disability” under the Act, which defines disability in virtually identical
language. Under both provisions, “disability” is defined as the inability to “engage
in any substantial gainful activity by reason of any medically determinable physical
or mental impairment which can be expected to result in death or which has lasted or
can be expected to last for a continuous period of not less than twelve months.”
42 U.S.C. § 423(d)(1)(A) (disability insurance); id. § 1382c(a)(3)(A) (SSI). The
law and regulations governing the determination of disability are the same for both
programs. Greenspan, 38 F.3d at 236.
B.
Determination of Disability
When determining whether a claimant is disabled, an ALJ must engage in a
five-step sequential inquiry, as follows: (1) whether the claimant is currently engaged
in substantial gainful activity; (2) whether the claimant has a severe impairment; (3)
whether the claimant=s impairment meets or equals a listed impairment in Appendix
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1 of the regulations; (4) whether the claimant is capable of performing past relevant
work; and (5) whether the claimant is capable of performing any other work.
Perez,
415 F.3d at 461; Newton, 209 F.3d at 453.3 The claimant has the burden to prove
disability under the first four steps.
Perez, 415 F.3d at 461; Myers, 238 F.3d at 619.
If the claimant successfully carries this burden, the burden shifts to the Commissioner
at Step Five to show that the claimant is capable of performing other substantial
gainful employment that is available in the national economy.
Perez, 415 F.3d at
461; Masterson, 309 F.3d at 272; Greenspan, 38 F.3d at 236.
Once the
Commissioner makes this showing, the burden shifts back to the claimant to rebut
the finding. Perez, 415 F.3d at 461; Newton, 209 F.3d at 453. A finding that a
claimant is disabled or not disabled at any point in the five-step review is conclusive
and terminates the analysis. Perez, 415 F.3d at 461 (citing 20 C.F.R. § 404.1520(a)).
In this case, at Step One, the ALJ determined that Martinez had not engaged
in substantial gainful activity since November 15, 2014, her alleged onset date.
R. 29. At Step Two, the ALJ found that Martinez had four severe impairments:
3
The Commissioner’s analysis at Steps Four and Five is based on the assessment of
the claimant’s residual functional capacity (“RFC”), or the work a claimant still can
do despite his or her physical and mental limitations. Perez, 415 F.3d at 461-62.
The Commissioner assesses the RFC before proceeding from Step Three to Step
Four. Id.
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degenerative disc disease of the cervical and lumbar spines, degenerative joint disease
of the bilateral knees, cancer of the salivary gland, and obesity with glucose
intolerance.
Id.
The ALJ also found that Martinez had multiple non-severe
impairments, including diabetes mellitus, carpal tunnel syndrome, migraine
headaches, and a heel spur.
Id. At Step Three, the ALJ determined the Plaintiff
did not have an impairment or combination of impairments that met or medically
exceeded the severity of the listed impairments as set forth in the relevant regulations.
R. 31.
Before proceeding to Step Four, the ALJ assessed Martinez=s residual
functional capacity (“RFC”) and found that Plaintiff could perform “light” work with
certain limitations:
The claimant is able to lift and carry 20 pounds occasionally and 10
pounds frequently, stand and walk about 6 hours in an 8 hour day, and
sit for at least 6 hours in an 8 hour day. The claimant is unable to climb
ladders, ropes, or scaffolds. However, the claimant is able to
occasionally balance, stoop, kneel, crouch, and crawl.
R. 35. At Step Four, the ALJ determined that Martinez was able to perform her past
relevant work as a reservationist at Southwest Airlines, which is sedentary, semiskilled work. R. 42. The ALJ therefore concluded the claimant was not under a
disability from November 15, 2014, through December 16, 2016, the date of her
decision. R. 43.
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C.
Plaintiff’s Arguments for Reversal
1.
RFC Determination
Plaintiff argues the ALJ improperly determined her RFC, and that the ALJ=s
determination was not supported by substantial evidence.
Specifically, Plaintiff
contends that the ALJ improperly rejected the opinions of Plaintiff’s treating
physicians and relied on the contrary opinion from the medical expert, who had not
examined Plaintiff. She cites to the records from her multiple treating physicians,
including surgical reports and medical testing results, to support her claim.
An ALJ is responsible for determining the claimant’s RFC, and that RFC must
be supported by substantial evidence.
Ripley v. Chater, 67 F.3d 552, 557 (5th Cir.
1995); Williams v. Astrue, 355 F. App’x 828, 832 & n.6 (5th Cir. 2009) (per curiam).
An ALJ must consider the complete record.
Myers, 238 F.3d at 621; see Thomas
v. Astrue, 277 F. App’x 350, 353 (5th Cir. 2008) (per curiam); Bryant v. Astrue, 272
F. App’x 352, 356 (5th Cir. 2008) (per curiam).
Evidence
physicians generally is entitled to significant weight.
from
treating
“[T]he opinions, diagnoses,
and medical evidence of a treating physician who is familiar with the claimant’s
injuries, treatments, and responses should be accorded considerable weight in
determining disability.” Kneeland v. Berryhill, 850 F.3d 749, 760 (5th Cir. 2017).
Opinions from treating sources are entitled to greater weight that those from non17
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examining sources.4
In this case, the ALJ gave a narration of the medical evidence, symptoms, and
opinions about Plaintiff’s impairments in the course of assessing Plaintiff’s RFC.
R. 32-42.
However, the ALJ concluded inconsistently, without detailed
explanation, that Plaintiff was capable of “light work.” R. 35. In reaching this
conclusion, the ALJ dismissed multiple letters from Plaintiff’s treating physicians.
First, the ALJ discounted Dr. Westmark’s letters dated November 16, 2014, and
April 20, 2015, which advocated for Plaintiff’s medical leave from work at
Southwest Airlines. R. 41. The ALJ stated simply that the letters “did not restrict
the claimant from working for a full [twelve] months” and “[t]hus . . . [did] not
indicate a finding of disability for Social Security purposes.” Id.
Second, for the same reason, the ALJ gave little weight to Dr. Grant’s opinion,
set forth in his letter dated November 10, 2015, that Plaintiff needed six additional
4
20 C.F.R. § 404.1527(c)(1) (“Generally, we give more weight to the opinion of a
source who has examined you than to the opinion of a source who has not examined
you.”). Clear Fifth Circuit precedent requires an ALJ to give “controlling weight”
to a treating physician’s opinion, if the opinion is “well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is not inconsistent”
with . . . other substantial evidence” in the record. Newton, 209 F.3d at 455
(internal quotation marks and citations omitted) (alteration in original). Before
declining to give any weight to the opinions of a treating doctor, an ALJ must
consider the factors of length of treatment, frequency of examination, nature and
extent of relationship, support provided by other evidence, consistency of opinion
with record, and specialization. Myers, 238 F.3d at 621; Newton, 209 F.3d at 456.
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months medical leave due to the mass on her parotid gland and associated
complications. Id. (assigning “little weight” to Dr. Grant’s November 2015 letter
because “there is no indication that Dr. Grant considered the Social Security
requirements for disability” and “Dr. Grant did not provide any specific information
indicating that the claimant would be unable to work for a full 12 months as required
by the Act”).
Third, the ALJ assigned “little weight” to Dr. Grant’s letter dated June 13,
2016, which discussed her “chronic lymphocytic leukemia,” “complicated postoperative course” after anterior cervical disc surgery, and “severe post-operative
neuralgia/neuropathy to the neck region” in support of the doctor’s conclusion that
Martinez was “not cleared medically for work.” Id. Here, the ALJ assigned Dr.
Grant’s opinion “little weight” because it concerned an issue “reserved to the
Commissioner.”
Id.
The ALJ further stated that Dr. Grant’s opinion was “not
persuasive” because it was “unsupported by” and “inconsistent with” the medical
evidence in the record. R. 42.5 As support for her conclusion, the ALJ cited to
5
The ALJ stated in conclusory fashion: “The evidentiary weight to be given to such
an opinion depends upon whether specific and complete clinical findings or other
objective medical evidence supports it and whether it is consistent with the other
evidence. This opinion is not persuasive because it is unsupported by objective
clinical findings and is inconsistent with the evidence considered as a whole.” R.
41-42.
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records demonstrating that the FNA conducted by Dr. Grant in April 2015 led to the
conclusion that Plaintiff’s Warthin’s tumor was benign.
Id. However, the ALJ
also specifically noted a later surgical pathology report, dated December 17, 2015,
that “showed findings consistent with chronic lymphocytic leukemia or small
lymphotic lymphoma,” and a CT scan from June 2016 showing the presence of
nodules on the lymph nodes in Plaintiff’s neck. Id.6 The ALJ did not explain how
this later evidence impacted her conclusion that Dr. Grant’s opinion was
“unsupported by” or “inconsistent with” the medical evidence.
See Id.
Moreover, although the ALJ stated that the record contained “no treating notes to
show that the claimant has severe post-operative neuralgia or neuropathy to the neck
region,” id., in fact the medical records reveal that Plaintiff sought and obtained
extensive treatment for pain around the time Dr. Grant wrote his June 2016 letter.
See, e.g., R. 892-93 (Exhibit 12F) (noting on June 1, 2016 that Plaintiff had pain in
6
R. 42 (“Specifically, on June 13, 2016, a CT scan showed that the claimant had
bilateral cervical adenopathy. . . . There was a nodule within the right parotid gland.
The nodule may have been an intraparenchymal lymph node or other neoplasm of
the parotid gland. A CT scan showed a nonspecific bilateral axillary and upper
mediastinal sub centimeter lymph nodes. There was a 4 mm pleural-based right
upper lobe nodule. As noted, on April 22, 2015, a fine needle aspiration of the
claimant’s right parotid gland showed abundant lymphocytes and oncocytic cells.
The finding was consistent with Warthin’s tumor. The tumor was benign. A
surgical pathology report dated December 17, 2015, showed findings consistent
with chronic lymphocytic leukemia or small lymphotic lymphoma.”).
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the neck, shoulder, and lower back regions that was “stable,” “constant,” and “9/10”
on average); R. 909, 974, 976 (documenting injections in June and July 2016). The
ALJ’s RFC determination thus rested entirely on the ALJ=s dismissal of the letters
from treating physician’s Dr. Grant and Dr. Westmark.
R. 41-42.
While Fifth
Circuit law provides that the determination of disability is reserved to the
Commissioner, and not to Plaintiff=s physicians, 7 the ALJ in this case wholly
disregarded the underlying reasons for Plaintiff’s physicians’ letters stating she was
not medically cleared to work.
In fact, Plaintiff had presented ample medical
evidence from both Dr. Grant and Dr. Westmark that supported the conclusions in
their letters, in addition to extensive supporting evidence from Dr. Newman, Dr. Lee,
Dr. Fischer, and other doctors.
The record establishes that Plaintiff had numerous, frequent medical
appointments and procedures during the relevant period, including cervical spine
surgery on November 17, 2014, R. 755-58, two carpal tunnel surgeries occurring on
July 1 and September 23, 2015, R. 720-27, 730-31, removal of a mass from her
parotid gland associated with her chronic lymphocytic leukemia on December 8,
7
Because the determination of disability is reserved to the Commissioner, a medical
source’s conclusion that a claimant is “disabled” or “unable to work” is not binding
on the Commissioner. 20 C.F.R. § 404.1527(d)(1); id. § 416.927(d)(1).
See Thibodeaux v. Astrue, 324 F. App’x 440, 444 (5th Cir. 2009) (per curiam).
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2015, R.1190-93, 1199-1200, and surgery on her right knee on September 9, 2016,
R. 1135-36. As detailed above, the need for these procedures, their complications,
and the required recovery periods are supported by objective medical evidence
throughout the record, including bone scans, MRI exams, CT scans, and x-rays.
See, e.g., R. 304-05, 323, 604-06. The ALJ recited much of this evidence in her
written opinion. See R. 37-40.
The record also documents Plaintiff’s subjective complaints, which included
severe pain that was not successfully managed, despite numerous surgeries and
frequent medical treatment throughout the period.
See, e.g., R. 399 (Exhibit 3F)
(noting referral to pain-management specialists because, despite her neck surgery,
her pain had become worse); R. 892-93 (Exhibit 12F) (noting treatment at pain
management center for chronic-pain syndrome, including injections); R. 1089-92
(Exhibit 20F) (noting referral to pain-management clinic for physical therapy and
medication with codeine for “severe pain”); R. 1127-33 (Exhibit 21F) (noting that
although Plaintiff was initially asymptomatic after knee surgery, pain soon returned
in both knees); R. 1153 (Exhibit 22F) (noting further injections for back pain).
Plaintiff’s treating physicians recognized and noted the severity of her
impairments in the medical records.
without an explanation.
An ALJ cannot reject a medical opinion
Kneeland, 850 F.3d at 760; see Beasley v. Barnhart, 191
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F. App’x 331, 334 (5th Cir. 2006) (per curiam) (“The ALJ must always give good
reasons for the weight it affords the opinion [of a treating physician], and must show
good cause when giving that opinion little or no weight.”) (internal quotation marks,
alteration, and citations omitted).
The ALJ’s opinion in this case provides no
explanation for her disregard of the medical assessments of Plaintiff’s multiple
treating physicians. See Myers, 238 F.3d at 621 (holding that an ALJ may discount
weight given to a physician’s opinion for “good cause” when the physician’s opinion
is “brief and conclusory, not supported by medically acceptable clinical laboratory
diagnostic techniques, or otherwise unsupported by the evidence”) (internal citation
and quotation marks omitted).8
Finally, the ALJ’s determination that Plaintiff retained the RFC to do “light
work” on a sustained, full time basis, which included a finding that she could sit,
stand and walk “about 6 hours in a 8 hour day,” R. 35, does not appear to account for
the amount of time Plaintiff would be absent from the workplace and her employment
8
To the extent the ALJ’s opinion supporting her determination of Plaintiff=s RFC
relies on the testimony of the independent medical expert who did not examine
Plaintiff, such testimony is insufficient in light of the other evidence of record. See
Newton, 209 F.3d at 460 (holding that an ALJ may not reject the treating physician’s
medical opinions “without contradictory evidence from physicians who had
examined or treated” the claimant and “without requesting additional information
from the treating physician”).
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due to numerous doctor’s visits and recovery time from her multiple surgeries. 9
Under the regulations, a claimant’s RFC “is the most [she] can still do despite [her]
limitations.” 20 C.F.R. § 404.1545(a)(1) (emphasis added).10 Plaintiff’s complex
medical condition necessitated extensive absenteeism due solely to her medical
appointments and hospitalizations, apart from the effects of her pain and other
symptoms on her ability to sustain work-related activities.
For all the reasons explained above, the ALJ’s determination that Martinez
retained the capacity for “light work” is not supported by substantial evidence. 11
Remand is required for additional administrative proceedings consistent with this
opinion. See Ripley, 67 F.3d at 557-58.
2.
Step Three Determination
9
See Frank v. Barnhart, 326 F.3d 618, 619 (5th Cir. 2003) (“Usually, the issue of
whether a claimant can maintain employment for a significant period of time will
be subsumed in the analysis regarding the claimant’s ability to obtain
employment.”); Watson, 288 F.3d at 217 (holding a claimant must not only find
employment, but also must have the ability to hold a job for a significant period of
time).
10
An RFC assesses the claimant’s ability to do “sustained” work-related activity “on
a regular and continuing basis.” SSR 96-8p, § 1, 1996 WL 374184, at *1 (1996)
(“A ‘regular and continuing basis’ means 8 hours a day, for 5 days a week, or an
equivalent work schedule.”).
11
The ALJ is required to consider all evidence in the record when determining the
RFC. Myers, 238 F.3d at 621; Ripley, 67 F.3d at 557; see Williams, 355 F. App’x
at 832 & n.6; Thomas, 277 F. App’x at 353; Bryant, 272 F. App’x at 356.
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Given this holding, the Court need not address Plaintiff’s argument that the
ALJ’s determination at Step Three was not supported by substantial evidence.
However, on remand, the Commission is instructed to give Plaintiff’s Step Three
argument careful consideration.
Plaintiff has presented significant medical
evidence supporting her claim that she satisfied Listing 1.04A12 during the relevant
period, including evidence of degenerative disc disease, osteoarthritis, nerve root
compression, motor and reflex loss, and positive straight leg raising test.
See, e.g.,
R. 267-89 (Exhibit 1F); R. 290-395 (Exhibit 2F); R. 396-427 (Exhibit 3F); R. 696781 (Exhibit 10F); R. 860-900 (Exhibit 12F); R. 968-1033 (Exhibit 15F); R. 1066-71
(Exhibit 18F); R. 1082-1109 (Exhibit 20F); R. 1313-19 (Exhibit 29F). The ALJ’s
determination at Step Three that Plaintiff did not meet Listing 1.04A because Plaintiff
12
Listing 1.04A provides:
1.04 Disorders of the spine (e.g., herniated nucleus pulposus, spinal
arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease,
facet arthritis, vertebral fracture), resulting in compromise of a nerve
root (including the cauda equina) or the spinal cord. With:
A. Evidence of nerve root compression characterized by neuroanatomic 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); . . . .
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.04A.
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“did not have motor loss, accompanied by sensory or reflex loss” and “was able to
ambulate effectively,” R. 33, does not adequately address the medical evidence set
forth above in this Memorandum.
V.
CONCLUSION AND ORDER
For the foregoing reasons, it is hereby
ORDERED that Plaintiff’s Motion for Summary Judgment [Doc. # 7] is
GRANTED. It is further
ORDERED that Defendant’s Motion for Summary Judgment [Doc. # 8] is
DENIED.
A separate Order of Remand will issue.
28th
SIGNED at Houston, Texas, this ___ day of September, 2018.
NAN Y F. ATLAS
SENIOR UNI
STATES DISTRICT JUDGE
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