Lewis v. Astrue, No. 3:2007cv01982 - Document 30 (N.D. Tex. 2009)
Court Description: Memorandum Opinion and Order: The hearing decision is reversed and this case is remanded to the Commissioner of Social Security for further proceedings consistent with this opinion. (see order) (Ordered by Magistrate Judge Jeff Kaplan on 11/19/2009) (axm)
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DISTRICT COURT IN THE LINITEDSTATES OF NORTHERN DISTRICT TEXAS DALLAS DIVISION BARBARA LEWIS Plaintiff, VS. MICHAELJ. ASTRUE, of Commissioner SocialSecurity Defendant. $ $ $ $ $ $ $ $ $ $ NO. 3- 07- CV- 1982- BD MEMORANDUM OPINION AND ORDER judicialreview finaladverse oftheCommissioner decision ofa Lewisseeks PlaintiffBarbara decision the stated herein, hearing pursuant 42U.S.C. a05(g),Forthereasons to Security of Social $ is reversed. I. Plaintiff allegesthat she is disableddue to a variety of ailments,including bilateral carpal tunnel syndrome, degenerativedisk disease of the cervical and lumbar spine, tendonitis, joint disease both hips and both in arthritis,a flexor sheathcyst, and degenerative carpometacarpal knees. After her application for disability benefits was denied initially and on reconsideration, plaintiff requested a hearing before an administrative law judge. That hearing was held on September20,2006. At the time of the hearing,plaintiff was 63 yearsold. She is a high school graduate,attendedcollege for one year, and has past work experienceas a hospital insurance gainful activity sinceshewas injured in an in Plaintiff has not engaged substantial representative. automobileaccidenton December10, 2003. The ALJ found that plaintiff was not disabledand thereforenot entitled to disability benefits. Although the medical evidenceestablishedthat plaintiff suffered from carpal tunnel syndromeand the that the severityof thoseimpairmentsdid not cervicaland lumbar spondylosis, judge concluded meet or equalany impairmentlisted in the SocialSecurityregulations.The ALJ fuither determined that plaintiff had the residual functional capacity to perform the full range of sedentarywork, including her past relevant work as a hospital insurancerepresentative.Plaintiff appealedthat decisionto the Appeals Council. The Council affirmed. Plaintiff then filed this action in federal court. il. In two broad groundsfor relief, plaintiff contendsthat: (l) substantialevidencedoes not supportthe finding that shehasthe residualfunctional capacityto perform the full rangeof sedentary work; and (2) the ALJ erred in finding that she can perform her past relevant work as a hospital insurancerepresentative. A. whetherthe Commissioner's is Judicialreview in socialsecuritycases limited to determining were usedto evidenceand whetherthe proper legal standards by decisionis supported substantial e. the evaluate evidenc See42 U.S.C.$ a05(g);Ripleyv. Choter,67 F.3d 552, 555(5th Cir. 1995). mind might acceptas Substantialevidenceis defined as "such relevantevidenceas a reasonable Ri . C . a d e q u a t e t o s u p p o r t a c o n c l u s i o n c"h a r d s o n v . P e r a l e s , 4 0 2 U . S . 3 8 9 , 4 0 l , 9 l S .1 4t2 0 , 1 4 2 7 , S d 2 8 L . E d . 2 d 5 4 2 ( 1 9 7 l ) ; A u s t i n v . h a l a l a , 9 9 4 F . 2 1 1 7 0 ,1 1 7 4 ( 5 t h C i r .1 9 9 3 ) .I t i s m o r e t h a n a . Richardson,9I S.Ct. at 1427 The district court may not scintilla but lessthan a preponderance. reweigh the evidence or substituteits judgment for that of the Commissioner,but must scrutinize whethersubstantial evidencesupportsthe hearingdecision. Hollis v. the entire recordto ascertain B o w e n , 8 3 7 . 2 d1 3 7 8 ,1 3 8 3( 5 t hC i r . 1 9 8 8 ) . F A disabledworker is entitledto monthly socialsecuritybenefitsif certainconditionsaremet. 42 U,S.C. g a23(a). The Act defines "disability" as the inability to engagein substantialgainful activity by reasonof any medically determinablephysical or mental impairment that can be expected to result in deathor last for a continuedperiod of l2 months. Id. $ 423(dXl )(/t): Cook v. Heckler, has a 750 F.2d 391,393 (5th Cir. 1985). The Commissioner promulgated five-stepsequential evaluationprocessthat must be followed in making a disability determination: l. whetherthe claimant The hearingofficer must first ascertain gainful activity. A claimantwho is in is engaged substantial of working is not disabledregardless the medical findings. 2. whetherthe claimed The hearingofficer must then determine impairment is "severe." A "severe impairment" must significantly limit the claimant'sphysical or mental ability to do basic work activities. This determinationmust be made solely on the basisof the medicalevidence. 3. The hearing officer must then determineif the impairment meets or equals in severity certain impairments described in Appendix I of the regulations. This determination is madeusing only medicalevidence. 4. If the claimant has a "severeimpairment" covered by the regulations,the hearingofhcer must determinewhetherthe claimant can perform his past work despiteany limitations. 5. If the claimant doesnot have the residual functional capacity to perform pastwork, the hearingofficer must decidewhether the claimant can perform any other gainful and substantial work in the economy. This determinationis made on the and work experience, basisof the claimant'sage,education, residualfunctionalcapacity. a Seegenerally,20 C.F.R. $ 404.1520(b)-(0.The claimanthasthe initial burdenof establishing U.S. 137,146n.5, 107S.Ct. Bowenv. Yuckert,482 disabilityin the first four steps this analysis. of 2287,2294n.5,96L.8d.2d I 19 (1987). The burdenthen shiftsto the Commissioner showthat to the claimant is capableof performing work in the national economy. Id. Afinding that the claimant is disabledor not disabled at any point in the five-step review is conclusiveand terminatesthe analysis.Lovelacev. Bowen,813F.2d 55, 58 (5th Cir. 1987). In reviewing the propriety of a decisionthat a claimantis not disabled,the court'sfunction is to ascertain whether the record as a whole contains substantialevidence to support the Commissioner'sfinal decision. The court weighs four elementsto determinewhether there is and evidence disability: (l) objectivemedicalfacts;(2) diagnoses opinionsoftreating of substantial (3) evidence pain and disability; and (4) the claimant'sage, of and examiningphysicians; subjective education,and work history. Martinez v. Chater,64 F.3d 172, 174 (5th Cir. 1995),citing Wrenv. Sullivan,gzlF.2dl23,126(5thCir. 1991).TheALJhasadutytofullyandfairlydevelopthefacts relating to a claim for disability benefits. Ripley,67 F.3d at 557. If the ALJ does not satisfuthis justified. Id, However,procedural perfectionis not duty, the resultingdecisionis not substantially required. The court will reversean administrativeruling only if the claimant shows that his Tex. 1997). 980, 984 (1lLD. rightswere prejudiced.Smithv. Chater,962F.Supp. substantive B. of the Plaintiff challenges assessment her residualfunctionalcapacityon the groundthat the ALJ failed to develop the record by ordering a consultativeexamination to fully evaluatethe limitations of her carpal tunnel syndrome. It is well-establishedthat the ALJ has a duty to fully and fairly develop the facts relating to a claim for disability benefits. See Cornett v. Astrue, 261 Fed.Appx. 644,2008 WL 58822at *2 (5th Cir. Jan.3, 2008);Ripley,67 F.3d at 557. This duty probeinto, inquire of, and explorefor all the and conscientiously requiresthe ALJ to "scrupulously relevant facts." Kane v. Heckler, 731 F.2d 1216, 1220 (5th Cir. 1984) (citing cases). When the existing medical evidence is inadequateto make a disability determination, the Social Security regulations require the ALJ to develop the record by recontactingthe claimant's medical sourcesor referringthe claimantfor a consultative examination.See20 C.F.R. $ 404.l5l2(e)-(0. Additional evidenceor clarifuing reports may be necessary when the medical opinion of a treating source appears lackingor inconsistent. SSR96-2p,1996WL374188 *4 (1996).However, See at aremand that the for further developmentof the record is appropriateonly when the plaintiff establishes . additionalevidencemight have led to a different decision SeeNewton v. Apfel,209 F.3d 448,458 (5th Cir. 2000) (reversalappropriate only if claimantshowsprejudiceresultingfrom ALJ's failure to requestadditionalinformation);see also Brock v. Chater,84 F.3d 726,728 (5th Cir. 1996), 'could and would have adduced quoting Kane,73L F.2d at 1220 (plaintiff must "show that he evidencethat might have alteredthe result"'). The gravamenof plaintiffs disability claim is that the pain causedby her carpal tunnel for syndromepreventsher from using her handsmore than occasionally reaching,grasping,or fine a hearing,Dr. Alec D. Steele, manipulation. (SeeTr. at 476, 487 488, 497). At the administrative , non-treating medical expert, was askedby the ALJ whether he had enough information to form an opinion concerningthe severityof plaintiffs allegedphysicalimpairments. Dr. Steeleresponded: Probablynot quite . . . I know she has the carpal tunnel syndrome and with the diagnosis which indicateconsistent on based the records, apparently NCV abnormalities,but there aren't details as to the severity of pain, which, of course,is subjective. There aren't any good, there's no physical examination with respect to sensory changes,there'sno physical exam with respectto motor changes, there'sno physical exam with respectto muscle atrophy in the hands and, therefore, I can't get much of a handle on the severity of the problem per se in terms of - and what limitations that might impose. (ld. at 476-77). Later in the hearing, after determining that plaintiffs past relevant work required "active use of the handsthroughoutthe day," the ALJ askedDr. Steelewhetherthere was enough information in the record to determinewhether plaintiff was capableof such activity. (Id. at 484). Dr. Steeletestified,"You probablyneedto find out more,you don'thaveenoughinformationto say that she can't do that." (Id.). Dr. Steelethen recommended neurologicalexamination. (ld.). a to Although the ALJ agreedthat additional evidencewas necessary make a disability determination, and consideredordering a neurological examination,an orthopedic examination, x-rays, and other the tests, (seeid. at 484,489),thejudge ultimately decidedagainstthat option. Instead, ALJ asked plaintiff to obtain additionalmedicalassessments from two of her treatingphysicians--Dr. Todd C. Johnson, an orthopedic surgeon, and Dr. Denton Watamull, a hand surgeon. (Id. at 493, 498). Specifically, the ALJ askedboth doctorsto "take particular note of what the hand limits were," (id.), and wanted Dr. Watamull to explain the extentto which carpaltunnel releasesurgerywould improve the functioning of plaintiffs right hand. (1d. at 500). Dr. Watamull refused to complete the disability form unless plaintiff had a functional 28,2006, Dr. Watamull wrote: capacityexamination. In a follow-up note datedSeptember fill [I] havetold her I would be unableto accurately out the disability form given complexity and fact we haven't seenher in 2 years. Would recommendan FCE [functional capacityexamination] if she wants us to fill out form: We are a surgicalpractice,not a disability evaluatingpractice. her Have also encouraged to follow up with physiatristuntil readyto pursue surgery. (Id. at 375) (emphasisadded). It is not clear whether plaintiff returnedto Dr. Johnsonafter the 20,2006. However,the day beforethe hearing,Dr. Johnson administrativehearingon September indicatingthat plaintiff could perform reachingand handling completeda medicalsourcestatement activities on a constantbasis and fingering on a frequentbasis. (Id. at 370). Dr. Johnsonalso expressedhis opinion that carpal tunnel releasesurgery would improve plaintiffs enduranceand hand work, but went on to say that plaintiff neededto seea physicalmedicine and rehabilitation specialistand"have afunetional capacityevaluation.^ (ld.at375) (emphasis added). In determiningthat plaintiff could perform the full rangeof sedentary work, including her pastrelevantwork asa hospitalinsurance representative, ALJ foundthat plaintiff "canconstantly the reach overhead,forward, and handling with both hands, and frequent bilateral fingering." (ld. at 456). However,thereis insufficientmedicalevidencein the recordto enablethe ALJ to make such motor a finding. As noted by Dr. Steele,plaintiff never had a physical examinationto assess changes,sensorychanges,or muscle atrophy in the hands,which would inform the ALJ as to what limitations might result from her carpal tunnel syndrome, (Id. at 476-77). Nor does the record contain any medical findings regardingthe severity of plaintiffs pain. Most significantly, the testiffing medical expert and plaintiffs two treating physiciansall agreed that a consultative the in was warranted this case. (/d at372,375, 484). In view of this evidence, ALJ examination should have developedthe recordby orderingsuchan examination. opinion that plaintiff can perform reachingand The Commissionerpoints to Dr. Johnson's handling activities on a constantbasis and fingering on a frequent basis as substantialevidenceto obtainedfrom Dr. supportthe ALJ's decision. (ld. at458). However,the medicalsourcestatement Johnsonis nothing more than a nakedopinion that doesnot reflectwhetherit was basedon a recent physical examinationof plaintiff. Not only does this medical source statementnot addressthe deficienciesnoted by Dr. Steele,but Dr. Johnsonhimself recommendedthat plaintiff "have a medical evidencecannot functional capacityevaluation." (Id. at 375). Where,as here,necessary be obtained from a treating source, the claimant should be asked to attend a consultative examination.See20 C.F.R.$ 404.1512(f);seealso SSR96-2p ,1996 WL 374188 at *4 (additional when the treating source'sopinion appearslacking). The medical evidence may be necessary that plaintiff should be further evaluatedto determine the extent of her limitations consensus examination.Had suchan triggeredthe ALJ's duty to developthe recordby orderinga consultative examination been conducted,it might have supportedplaintiffs testimony that the pain causedby her carpal tunnel syndrome prevented her from using her hands on a continuous basis, thereby precluding a return to her past relevant work. (See Tr. at 498-99). On these facts, a remand is WL Admin.,No.7-07-CV-021-BH,200E 3287100 required.SeeMackv. Comm'rofSocialSecurity at *9 Qll.D. Tex. Aug. 4, 2008) (remandrequiredwhere medical expert opined that consultative I was needed). evaluation CONCLUSION of to is is and decision reversed this case remanded the Commissioner Social The hearing with consistent this opinion. for Security furtherproceedings SOORDERED. 19,2009. DATED: November LAN lvlAGlSTI.ATE JLIDCH STATES I By remanding this casefor further administrative proceedings,the coult does not suggestthat plaintiff is or should be found disabled.
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