Lambert v. Social Security Administration Commissioner, No. 6:2016cv06125 - Document 16 (W.D. Ark. 2017)
Court Description: MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on December 20, 2017. (mjm)
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Lambert v. Social Security Administration Commissioner Doc. 16 IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS HOT SPRINGS DIVISION WENDEL LAMBERT vs. PLAINTIFF Civil No. 6:16-cv-06125 NANCY BERRYHILL Commissioner, Social Security Administration DEFENDANT MEMORANDUM OPINION Wendel Lambert (“Plaintiff”) brings this action pursuant to § 205(g) of Title II of the Social Security Act (“The Act”), 42 U.S.C. § 405(g) (2006), seeking judicial review of a final decision of the Commissioner of the Social Security Administration (“SSA”) denying his application for Disability Insurance Benefits (“DIB”) under Title II of the Act. The parties have consented to the jurisdiction of a magistrate judge to conduct any and all proceedings in this case, including conducting the trial, ordering the entry of a final judgment, and conducting all post-judgment proceedings. ECF No. 9.1 Pursuant to this authority, the Court issues this memorandum opinion and orders the entry of a final judgment in this matter. 1. Background: Plaintiff’s application for DIB was filed on June 28, 2012. (Tr. 275-278). Plaintiff alleged he was disabled due to complications with his left knee as a result of a car accident. (Tr. 341). Plaintiff alleged an onset date of October 10, 2010. (Tr. 275). This application was denied initially and again upon reconsideration. (Tr. 150-167). Thereafter, Plaintiff requested an administrative 1 The docket numbers for this case are referenced by the designation “ECF. No.___” The transcript pages for this case are referenced by the designation “Tr.” 1 Dockets.Justia.com hearing on his application and this hearing request was granted. (Tr. 219). Plaintiff’s initial administrative hearing was held on June 11, 2014. (Tr. 66-95). On July 2, 2014, the ALJ issued an unfavorable decision. (Tr. 168-187). The Appeals Council reviewed the ALJ’s July 2014 decision and remanded the case to the ALJ, ordering to obtain evidence from a medical expert to clarify whether Plaintiff’s impairments met a listing prior to July 3, 2014. (Tr. 211). Plaintiff’s second administrative hearing was held on February 23, 2016. (Tr. 96-149). Plaintiff was present and was represented by attorney, Terry Diggs, at this hearing. Id. Plaintiff, Medical Expert (“ME”) Dr. John Kwock, and Vocational Expert (“VE”) Myrtle Johnson testified at this hearing. Id. At the time of this hearing, Plaintiff was fifty-seven (57) years old and had a high school education. (Tr. 114). On June 17, 2016, the ALJ entered an unfavorable decision denying Plaintiff’s application for DIB.2 (Tr. 13-33). In this decision, the ALJ determined the Plaintiff met the insured status requirements of the Act through December 31, 2016. (Tr. 16, Finding 1). The ALJ also determined Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) from October 10, 2010 through July 2, 2014. (Tr. 16, Finding 2). The ALJ determined that prior to July 3, 2014, Plaintiff had the severe impairments of chronic obstructive pulmonary disease (COPD), diabetes mellitus (historically poorly controlled with established treatment compliance issues), hypertension (historically inconsistently controlled with established compliance issues), mild-to-moderate arthritic changes of the bilateral knees, with a history of left knee lateral tibial plateau shear-type fracture with slight displacement (status-post open 2 Based on a prior favorable determination, the agency found Plaintiff was under a disability as of July 3, 2014. (Tr. 14). 2 reduction and internal fixation- December 2010), and obesity. (Tr. 16, Finding 3). The ALJ then determined Plaintiff’s impairments did not meet or medically equal the requirements of any of the Listing of Impairments in Appendix 1 to Subpart P of Regulations No. 4 (“Listings”). (Tr. 17, Finding 4). In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined his RFC. (Tr. 19-32). First, the ALJ indicated he evaluated Plaintiff’s subjective complaints and found his claimed limitations were not entirely credible. Id. Second, the ALJ determined Plaintiff retained the RFC for a limited range of light work. Id. The ALJ evaluated Plaintiff’s Past Relevant Work (“PRW”). (Tr. 32, Finding 6). The ALJ found that prior to July 3, 2014, Plaintiff was capable of performing his PRW. Id. Based upon this finding, the ALJ determined Plaintiff had not been under a disability as defined by the Act from October 10, 2010, through July 2, 2014. (Tr. 33, Finding 7). Thereafter, Plaintiff requested the Appeals Council review the ALJ’s decision. (Tr. 8). See 20 C.F.R. § 404.968. The Appeals Council declined to review this unfavorable decision. (Tr. 1-4). On December 9, 2016, Plaintiff filed the present appeal. ECF No. 1. The Parties consented to the jurisdiction of this Court on January 26, 2017. ECF No. 9. Both Parties have filed appeal briefs. ECF Nos. 14, 15. This case is now ready for decision. 2. Applicable Law: In reviewing this case, this Court is required to determine whether the Commissioner’s findings are supported by substantial evidence on the record as a whole. See 42 U.S.C. § 405(g) (2006); Ramirez v. Barnhart, 292 F.3d 576, 583 (8th Cir. 2002). Substantial evidence is less than a preponderance of the evidence, but it is enough that a reasonable mind would find it adequate to support the Commissioner’s decision. See Johnson v. Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001). 3 As long as there is substantial evidence in the record that supports the Commissioner’s decision, the Court may not reverse it simply because substantial evidence exists in the record that would have supported a contrary outcome or because the Court would have decided the case differently. See Haley v. Massanari, 258 F.3d 742, 747 (8th Cir. 2001). If, after reviewing the record, it is possible to draw two inconsistent positions from the evidence and one of those positions represents the findings of the ALJ, the decision of the ALJ must be affirmed. See Young v. Apfel, 221 F.3d 1065, 1068 (8th Cir. 2000). It is well established that a claimant for Social Security disability benefits has the burden of proving his or her disability by establishing a physical or mental disability that lasted at least one year and that prevents him or her from engaging in any substantial gainful activity. See Cox v. Apfel, 160 F.3d 1203, 1206 (8th Cir. 1998); 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Act defines a “physical or mental impairment” as “an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. §§ 423(d)(3), 1382(3)(c). A plaintiff must show that his or her disability, not simply his or her impairment, has lasted for at least twelve consecutive months. See 42 U.S.C. § 423(d)(1)(A). To determine whether the adult claimant suffers from a disability, the Commissioner uses the familiar five-step sequential evaluation. He determines: (1) whether the claimant is presently engaged in a “substantial gainful activity”; (2) whether the claimant has a severe impairment that significantly limits the claimant’s physical or mental ability to perform basic work activities; (3) whether the claimant has an impairment that meets or equals a presumptively disabling impairment listed in the regulations (if so, the claimant is disabled without regard to age, education, and work experience); (4) whether the claimant has the Residual Functional Capacity (RFC) to perform his 4 or her past relevant work; and (5) if the claimant cannot perform the past work, the burden shifts to the Commissioner to prove that there are other jobs in the national economy that the claimant can perform. See Cox, 160 F.3d at 1206; 20 C.F.R. §§ 404.1520(a)-(f). The fact finder only considers the plaintiff’s age, education, and work experience in light of his or her RFC if the final stage of this analysis is reached. See 20 C.F.R. §§ 404.1520, 416.920 (2003). 3. Discussion: Plaintiff brings the present appeal claiming the ALJ erred: (A) by failing to find Plaintiff met a Listing and (B) in failing to consider his impairments in combination. ECF No. 14, Pgs. 5-9. In response, the Defendant argues the ALJ did not err in any of his findings. ECF No. 15. A. Listings The ALJ must determine whether Plaintiff has a severe impairment that significantly limits the physical or mental ability to perform basic work activities. A medically determinable impairment or combination of impairments is severe if it significantly limits an individual’s physical or mental ability to do basic work activities. See 20 C.F.R. §§ 404.1521 and 416.921. The ALJ found Plaintiff did suffer from impairments considered to be severe within the meaning of the Social Security regulations. These impairments included history of coronary artery disease with intermittent angina pectoris, left ventricular systolic dysfunction, aortic stenosis, dyslipidemia, diabetes mellitus, obesity, hypertension, degenerative joint disease, and disc disease of the cervical and lumbar spine. (Tr. 71, Finding 3). However, there was no substantial evidence in the record showing Plaintiff’s condition was severe enough to meet or equal that of a listed impairment as set forth in the Listing of Impairments. See 20 C.F.R. pt. 404, subpt. P, app.1. Plaintiff has the burden of establishing that his impairment(s) meet or equal an impairment set out 5 in the Listing of Impairments. See Sullivan v. Zebley, 493 U.S. 521, 530-31 (1990). Plaintiff has not met this burden. Plaintiff argues he meets a Listing under Section 1.02 for major dysfunction of a joint and 1.03 for reconstructive surgery of a major weight-bearing joint. ECF No. 14, Pg. 5-9. Defendant argues Plaintiff has failed to establish he meets theses Listings. ECF No. 15. Impairments found under Listing 1.02 for major joint dysfunction requires evidence of: major dysfunction of a joint characterized by gross anatomical deformity (e.g., subluxation, contracture, bony, or fibrous ankylosis, instability) and chronic joint pain and stiffness with signs of limitation of motion or other abnormal motion of the affected joint, and findings on appropriate medically acceptable imaging of joint space narrowing, bony destruction, or ankylosis of the affected joint, with involvement of one major peripheral weight-bearing joint (i.e. hip, knee, or ankle), resulting in an inability to ambulate effectively, as defined in 1.00B2b or involvement 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. 20 C.F.R. pt. 404, subpt. P, app. 1, § 1.02. An “inability to ambulate effectively” is an extreme limitation of the ability to walk, i.e., an impairment that interferes very seriously with the individual’s ability to independently initiate, sustain, or complete activities. Ineffective ambulation is having insufficient lower extremity functioning to permit independent ambulation without the use of a hand-held assistive device(s) that limits the functioning of both upper extremities. See 20 C.F.R. pt. 404, subpt. P, app. 1, § 1.00B2b(1). To ambulate effectively, individuals must be capable of sustaining a reasonable walking pace over a sufficient distance to be able to carry out activities of daily living, and they must be able to travel without companion assistance to and from a place of employment or school. See 20 C.F.R. pt. 404, subpt. P, app. 1, § 1.00B2b(2). Examples of ineffective ambulation include, but are not limited to, the inability to walk without the use of a walker, two crutches or two canes, the inability 6 to walk a block at a reasonable pace on rough or uneven surfaces, the inability to use standard public transportation, the inability to carry out routine ambulatory activities, such as shopping and banking, and the inability to climb a few steps at a reasonable pace with the use of a single hand rail. Id. In this matter, Plaintiff has failed to establish he was unable to ambulate effectively prior to July 3, 2014. Plaintiff has no medical record evidence he has to use a walker, two crutches, or two canes to walk, or that a physician prescribed these items during the relevant time period. Further, Plaintiff presented no diagnostic medical evidence showing he has a major dysfunction of a joint characterized by gross anatomical deformity, and findings on medically acceptable imaging of joint space narrowing, bony destruction, or ankylosis of the affected joints. Dr. John Kwock, testified at the administrative hearing that Plaintiff’s treatment records showed he needed a walker to ambulate, but there was no evidence to support that degree of impairment from October 2010 through July 2, 2014. (Tr. 105). Dr. Kwock also testified there was no objective evidence that supported Plaintiff’s need to use a walker. Id. Dr. Kwock also testified that treatment records showed Plaintiff’s knee range of motion was essentially normal; physical examinations did not show instability of the knee; and there were no diagnostic examinations supporting use of a walker. (Tr. 106-107). An “inability to perform fine and gross movements effectively” means an extreme loss of function of both upper extremities; i.e., an impairment(s) that interferes very seriously with the individual's ability to independently initiate, sustain, or complete activities. To use their upper extremities effectively, individuals must be capable of sustaining such functions as reaching, pushing, pulling, grasping, and fingering to be able to carry out activities of daily living. Examples of inability to perform fine and gross movements effectively include, but are not limited to, the inability to prepare a simple meal and feed oneself, the inability to take care of personal hygiene, the 7 inability to sort and handle papers or files, and the inability to place files in a file cabinet at or above waist level. See 20 C.F.R. pt. 404, subpt. P, app. 1, § 1.00B2c. There is no credible evidence showing Plaintiff is prohibited from ambulating effectively with a major peripheral joint in each upper extremity resulting in inability to perform fine and gross movements effectively. Plaintiff also argues he meets Listing 1.03 for reconstructive surgery of a major weightbearing joint. To meet Listing 1.03 there requires reconstructive surgery or surgical arthrodesis of a major weight-bearing joint, with inability to ambulate effectively, as defined in 1.00B2b, and return to effective ambulation did not occur, or is not expected to occur, within 12 months of onset. See 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.03. As discussed above and for the same reasons set out for Listing 1.02, Plaintiff has failed to establish an inability to ambulate effectively. As such, Plaintiff does not meet the requirements for Listing 1.03. Whether Plaintiff meets a listed impairment is a medical determination and must be established by medically acceptable clinical and laboratory diagnostic techniques. See 20 C.F.R. §§ 404.1525(c), 404.1526(b), 416.925(c), 416.926(b). Plaintiff has not met this burden. I find substantial evidence supports the ALJ’s determination that Plaintiff did not have an impairment or combination of impairments equal to one listed in 20 C.F.R. pt. 404, subpt. P, app B. Combination of Impairments Plaintiff also argues the ALJ erred by failing to consider his obesity and diabetes in combination with his other impairments. However, under the facts in the present case and after a thorough review of the ALJ’s opinion and the record in this case, this Court finds the ALJ properly considered Plaintiff’s impairments in combination. 8 The Social Security Act requires the ALJ to consider the combined effect of all of the claimant’s impairments without regard to whether any such impairment, if considered separately, would be of sufficient severity. See 20 C.F.R. § 404.1523 (2006). In the present action, in reviewing these claimed impairments, the ALJ stated Plaintiff “does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.” (Tr. 17, Finding 4) (emphasis added). The ALJ also found, “after consideration of the entire record,” the Plaintiff had the RFC to perform sedentary work with some limitations. (Tr. 19, Finding 5). The ALJ went on to state that prior to July 3, 2014, Plaintiff was capable of performing his PRW. (Tr. 33, Finding 7). These statements are sufficient under Eighth Circuit precedent to establish that the ALJ properly considered the combined effect of a claimant’s impairments. See Hajek v. Shalala, 30 F.3d 89, 92 (8th Cir. 1994) (holding that statements such as “the evidence as a whole does not show that the claimant’s symptoms . . . preclude his past work as a janitor” and “[t]he claimant’s impairments do not prevent him from performing janitorial work . . .” sufficiently establish that the ALJ properly considered the combined effects of the plaintiff’s impairments). Thus, pursuant to the Eighth Circuit’s holding in Hajek, this Court finds the ALJ properly considered Plaintiff’s impairments in combination. Plaintiff has alleged he suffers from a number of impairments. However, this Court is not required to find a claimant is disabled simply because he or she has alleged a long list of medical problems. The ALJ’s opinion sufficiently indicates the ALJ properly considered the combined effect of Plaintiff’s impairments, and the ALJ properly considered the severity of the combination of Plaintiff’s impairments. See Hajek, 30 F.3d at 92. 4. Conclusion: Based on the foregoing, the undersigned finds that the decision of the ALJ, denying benefits 9 to Plaintiff, is supported by substantial evidence and should be affirmed. A judgment incorporating these findings will be entered pursuant to Federal Rules of Civil Procedure 52 and 58. ENTERED this 20th day of December 2017. /s/ Barry A. Bryant HON. BARRY A. BRYANT U.S. MAGISTRATE JUDGE 10
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