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Craig v. Berryhill

United States District Court, M.D. Louisiana

March 27, 2019

GERALDINE CRAIG
v.
NANCY A. BERRYHILL ACTING COMMISSIONER OF SOCIAL SECURITY

          RULING

          ERIN WILDER-DOOMES UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, Geraldine Craig (“Plaintiff”), brought this action under 42 U.S.C. §§ 405(g) and 1383(c)(3) for judicial review of the final decision of the Commissioner of the Social Security Administration (the “Commissioner”) denying her application for supplemental security income (“SSI”).[1] Plaintiff has filed a Brief in support of her appeal, [2] the Commissioner has filed an Opposition Memorandum, [3] and Plaintiff has filed a Reply.[4]

         Based on the applicable standard of review under § 405(g) and the analysis which follows, the court VACATES[5] the Commissioner's decision and REMANDS Plaintiff's case for further administrative proceedings consistent with this opinion.

         I. Procedural History

         Plaintiff filed an application for SSI on December 26, 2012 alleging disability beginning July 10, 2011[6] due to physical conditions.[7] Plaintiff's claim was initially denied on April 25, 2013.[8] Plaintiff requested a hearing before an administrative law judge (“ALJ”), [9] and a hearing was held on March 20, 2014 during which, Plaintiff, represented by counsel, testified.[10] On April 11, 2014, the ALJ issued a notice of unfavorable decision.[11] Per that decision, the ALJ found that Plaintiff had the severe impairment of bilateral carpal tunnel syndrome[12] but that Plaintiff was able to perform a full range of light work (i.e., without any manipulative limitations).[13] Plaintiff requested review by the Appeals Council, [14] and on June 29, 2015, the Appeals Council denied Plaintiff's request for review.[15]

         On September 2, 2015, Plaintiff filed a Complaint seeking review of the denial of her claim for SSI benefits, [16] and on April 22, 2016, the Commissioner filed an Unopposed Motion to Remand.[17] Per the Motion to Remand, the Commissioner explained that “the administrative decision denying benefits did not fully address evidence showing limitations attributable to [Plaintiff's] recognized impairment of bilateral carpal tunnel syndrome.”[18] On April 22, 2016, a Consent Judgment was signed by the district judge reversing the ALJ's April 11, 2014 decision and remanding the matter to the Commissioner for the purpose of conducting a rehearing and issuing a new administrative decision.[19] Per the Consent Judgment, rehearing was to include: reevaluation of the opinion evidence in the administrative record, reassessment of Plaintiff's “maximum functional capacity, especially as it relates to the limiting effects of bilateral carpal tunnel syndrome, ” and, if warranted, the gathering of supplemental evidence from a vocational expert (“VE”) “to clarify the effect of the assessed limitations on the plaintiff's ability to perform other work in the national economy.”[20]

         On August 20, 2016, and following remand to the Commissioner by this Court, the Appeals Council vacated the April 11, 2014 decision.[21] In its order, the Appeals Council found that the April 11, 2014 decision did not contain an adequate evaluation of opinion evidence in the record (specifically, the opinions of a consultative examiner, Dr. Michael Day, and a state agency medical consultant, Dr. Johnny Craig), failed to consider “the claimant's insurance/financial situation as a factor as to why she had limited treatment, ” and did not consider Plaintiff's allegations of illiteracy.[22] Upon remand, the Appeals Council instructed that the ALJ would:

Give further consideration to the claimant's maximum residual functional capacity and provide appropriate rationale with specific references to evidence of record in support of the assessed limitations, especially as it relates to the limiting effects of the claimant's bilateral carpal tunnel syndrome…. In doing so, give further consideration to the treating and nontreating source opinions…and nonexamining source opinions…and explain the weight given to such opinion evidence.[23]

         A second hearing before a different ALJ was scheduled on January 26, 2017; however, Plaintiff did not appear at that hearing, and her counsel later submitted a letter explaining that her arranged transportation to the hearing fell through at the last minute.[24] Another hearing was scheduled for June 29, 2017, and Plaintiff did not show up again.[25] On September 26, 2017, the ALJ issued another decision denying Plaintiff's claim for SSI benefits.[26] This time, the ALJ found that although Plaintiff had medically determinable impairments of bilateral carpal tunnel syndrome and Hepatitis C, neither impairment was severe.[27] Plaintiff did not file written exceptions seeking review of the September 26, 2017 decision by the Appeals Council, and therefore on November 27, 2017, the ALJ's September 26, 2017 decision became final. On November 30, 2017, Plaintiff filed her Complaint in this Court.[28] Accordingly, Plaintiff exhausted her administrative remedies before timely filing this action for judicial review and the ALJ's September 26, 2017 decision is the Commissioner's final decision for purposes of judicial review.[29]

         II. Standard of Review

         Under 42 U.S.C. § 405(g), judicial review of a final decision of the Commissioner denying disability benefits is limited to two inquiries: (1) whether substantial evidence exists in the record as a whole to support the Commissioner's findings, and (2) whether the Commissioner's final decision applies the proper legal standards.[30] If the Commissioner fails to apply the correct legal standards, or to provide a reviewing court with a sufficient basis to determine that the correct legal principles were followed, it is grounds for reversal.[31]

         III. The ALJ's Decision

         A claimant has the burden of proving that he or she suffers from a disability, which is defined as a medically determinable physical or mental impairment lasting at least 12 months that prevents the claimant from engaging in substantial gainful activity.[32] The regulations require the ALJ to apply a five-step sequential evaluation to each claim for benefits.[33] In the five-step sequence used to evaluate claims the Commissioner must determine whether: (1) the claimant is currently engaged in substantial gainful activity; (2) the claimant has a severe medically determinable impairment(s); (3) the impairment(s) meets or equals the severity of a listed impairment in Appendix 1 of the regulations; (4) the impairment(s) prevents the claimant from performing past relevant work; and, (5) the impairment(s) prevents the claimant from doing any other work.[34]

         The burden rests upon the claimant throughout the first four steps of this five-step process to prove disability.[35] If the claimant is successful at all four of the preceding steps then the burden shifts to the Commissioner to prove, considering the claimant's residual functional capacity (“RFC”), age, education and past work experience, that he or she is capable of performing other work.[36] If the Commissioner proves other work exists which the claimant can perform, the claimant is given the chance to prove that he or she cannot, in fact, perform that work.[37]

         Here, the ALJ determined that Plaintiff had the medically determinable impairments of bilateral carpal tunnel syndrome and Hepatitis C.[38] However, because the ALJ found that neither impairment was “severe, ” the ALJ found Plaintiff was not disabled at step two of the sequential analysis and did not proceed through the remaining steps.[39] In determining that Plaintiff's carpal tunnel syndrome was not severe, the ALJ explained that:

As described in detail above, the claimant was treated for signs and symptoms of carpal tunnel syndrome in January and June 2012, and she was again noted to have symptoms and clinical signs of bilateral carpal tunnel syndrome when seen for the consultative physical examination in March 2013. Conservative treatment in January and June 2012 included nighttime splints and steroid injections that apparently kept the symptoms well controlled between January and June 2012. The claimant was not interested in surgical treatment. There is no medical evidence to show significant signs or symptoms between January and June 2012, between June 2012 and the consultative examination in March 2013, or subsequent to March 2013. In sum, the medical evidence does not support a finding of more than mild or minimal functional limitation(s) related to carpal tunnel syndrome for a continuous period of at least 12 months or any current expectation of more than mild or minimal functional limitations for a period of at least 12 months. Accordingly, carpal tunnel syndrome is not shown to be a severe impairment.[40]

         IV. Plaintiff's Allegations of Error

         Plaintiff argues on appeal that the ALJ's step two determination was “legally erroneous and not supported by substantial evidence” because the ALJ rejected medical opinions finding Plaintiff's carpal tunnel syndrome to be severe and because the ALJ failed to comply with the District Court and Appeals Council's order upon remand.[41]

         V. Law and Analysis

         A. The ALJ Failed to Apply the Correct Legal Standards when Determining the Duration of Plaintiff's Impairment

         i. The Duration Requirement is Separate from the Question of Severity

         The Social Security Act defines “disability” 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 12 months.”[42] “The statute quite clearly requires that it is the impairment only which must last for a continuous period.”[43] This Court has explained that “[t]he severity of an impairment and its duration are separate issues. The regulations make it clear that at step two a claimant's alleged impairment must be a severe impairment and must also meet the duration requirement. The duration requirement for an impairment is not part of the inquiry or analysis for determining the severity of an impairment or combination of impairments.”[44]

         In finding that Plaintiff's carpal tunnel syndrome was not a severe impairment, the ALJ stated that there was “no medical evidence to show significant signs or symptoms between January and June 2012, between June 2012 and the consultative examination in March 2013, or subsequent to March 2013. In sum, the medical evidence does not support a finding of more than a mild or minimal functional limitation(s) related to carpal tunnel syndrome for a continuous period of at least 12 months….”[45] The ALJ gave “little weight” to functional assessments set out in a consultative examination (“CE”) completed by Dr. Day (and in turn by the non-examining state agency medical expert) because “the limitations set forth by Dr. Day as consultative examiner were largely based on carpal tunnel syndrome which is not shown to be a persistently severe impairment for a period of at least 12 consecutive months (or any expectation of such duration) from the date of her SSI application….”[46] Finally, the ALJ asserted that “[t]he conclusion that the claimant does not have an impairment or combination of impairments that significantly limited his or her ability to perform basic work activities is consistent with the objective medical evidence and other evidence and, more specifically, the lack of objective medical evidence or other evidence to support a finding of more than mild or minimal functional limitations for continuous period of at least 12 months (or any expectation of such) in relation to any impairment.”[47]

         It appears that the ALJ improperly conflated the question of the duration of an impairment with the question of the severity of an impairment. The ALJ's language suggests that the ALJ was requiring that the impairment be severe for at least twelve months. This is the incorrect legal standard. Instead, the impairment must both last for twelve months and be severe. “[A] claimant need only show that an alleged impairment has lasted or can be expected to last for the 12 month period to meet the duration requirement.”[48] The imposition of a durational requirement on the severity of the impairment resulted in application of the incorrect legal standard, which error was not harmless. The ALJ determined that Plaintiff had a medically determinable impairment of bilateral carpal tunnel syndrome. The medical records indicate that Plaintiff was exhibiting signs and symptoms of carpal tunnel syndrome from January 2012 through at least March 2013 (when she was examined by Dr. Day). This is a fourteen-month period. The medical records also reflect that Plaintiff complained of hand pain prior to January 2012, and that she continued to be assessed with bilateral carpal tunnel syndrome after Dr. Day's March 2013 CE report.[49] Thus, Plaintiff's bilateral carpal tunnel syndrome met the duration requirement.

         ii. The Relevant Time Period for the Durational Requirement does not have to be after the Application

         The Commissioner points out that SSI benefits are not payable for any month prior to the one in which claimant applied for benefits[50] and argues that substantial evidence supports the ALJ's finding that Plaintiff's impairment did not meet the twelve-month durational requirement because Plaintiff “points to her evidence prior to the time period at issue, when the issue of her eligibility for SSI benefits was moot due to the absence of an application for SSI benefits until December 2012.”[51] It is not clear whether the ALJ took into account the time period prior to the Plaintiff's application for benefits - the ALJ discusses the January 2012 doctor's notes, as well as a note from July 2011, [52] but the ALJ also stated that the Plaintiff's impairment was not persistently severe for a period of at least twelve consecutive months “from the date of her SSI application.”[53]

         Plaintiff is not required to establish that an impairment has lasted or can be expected to last for a twelve-month period starting from her application date through the ALJ's September 2017 decision. Social Security Regulations generally require an ALJ to develop the medical history of an individual seeking disability insurance benefits and/or SSI benefits for the twelve-month period prior to the month in which the application for benefits was filed.[54] While SSI payments “are prorated for the first month in which eligibility is established after application…, ” the Social Security Administration's Program Operations Manual (“POMS”) clearly instructs ALJs to consider the time period prior to the application date when determining the duration of an alleged impairment and includes the following “REMINDER: The duration period can begin…prior to the filing date in title XVI claims.”[55] While “POMS guidelines do not have the force and effect of law, they do have some value, effect, and persuasive force, ” “may be viewed as binding on an ALJ in a case that falls squarely within one of the provisions, ” and courts “generally defer to POMS provisions unless a court determines that they are arbitrary, capricious, or contrary to law.”[56] Here, in light of the clear guidance regarding the durational requirement set forth in the internal agency manual for processing social security claims, to the extent the ALJ only considered whether Plaintiff established an impairment after her application date of December 26, 2012, the ALJ failed to apply the proper standard.

         B. The ALJ's Determination that Plaintiff's Carpal Tunnel Syndrome is not a Severe Impairment is Not Supported by Substantial Evidence

          At step 2 of the sequential evaluation process the Commissioner must determine whether the claimant's “impairment or combination of impairments” is severe. According to the regulations, if the claimant does “not have any impairment or combination of impairments which significantly limits” his or her “physical or mental ability to do basic work activities, ” the Commissioner “will find” the claimant does “not have a severe impairment and [is], therefore, not disabled.”[57] Basic work activities include:

(1) Physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling;
(2) Capacities for seeing, hearing, and speaking;
(3) Understanding, carrying out, and remembering simple instructions;
(4) Use of judgment;
(5) Responding appropriately to supervision, co-workers and usual work situations; and
(6) Dealing with changes in a routine work setting.[58]

         Despite the seemingly stringent language of the Regulations, in the Fifth Circuit, “[s]evere impairment has a specific - if somewhat surprising - meaning.”[59] “‘An impairment can be considered as not severe only if it is a slight abnormality having such minimal effect on the individual that it would not be expected to interfere with the individual's ability to work, irrespective of age, education or work experience.'”[60] “Re-stated, an impairment is severe if it is anything more than a ‘slight abnormality' that ‘would not be expected to interfere' with a claimant's ability to work.”[61] “This second step requires the claimant to make a de minimis showing.”[62] This Court has noted that “‘[b]ecause step two is to be rarely utilized as [a] basis for the denial of benefits, its invocation is certain to raise a judicial eyebrow.'”[63]

         “‘The severity determination is based solely on medical factors.'”[64] Although certain medical records do not reflect complaints or musculoskeletal impairment related to carpal tunnel syndrome, [65] other medical records and the only medical opinion evidence in the record ...


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