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Dehart v. Saul

United States District Court, S.D. Texas, Houston Division

October 29, 2019




         Before the Magistrate Judge[2] in this Social Security appeal is Defendant's Cross Motion for Summary Judgment (Document No. 13), Brief in Support in Cross Motion (Document No. 14), Plaintiffs Cross Motion for Summary Judgment (Document No. 15), Brief in Support of Cross Motion (Document No. 16), Defendant's Reply to Plaintiffs Cross Motion for Summary Judgment (Document No. 17), and Plaintiffs Response to Defendant's Cross Motion for Summary Judgment. After considering the Cross Motions for Summary Judgment, the parties briefing, the administrative record, the written decision of the Administrative Law Judge, and the applicable law, the Court ORDERS, for the reasons set forth below, that Defendant's Motion for Summary Judgment (Document No. 13) is GRANTED and the Plaintiffs Motion for Summary Judgment (Document No. 15) is DENIED.

         A. Procedural History

         Plaintiff, Ramona Louise Dehart (hereinafter "Dehart"), filed applications for Supplemental Security income benefits alleging disability due to bipolar disorder, depression, and back and neck problems. (Tr. at 64, 76; Document No. 16 at 1). The claim was denied on August 7, 2015 and again upon reconsideration on November 20, 2015. (Tr. at 63). Dehart had a hearing in front of the Administrative Law Judge ("ALJ") D'Lisa Simmons on July 7, 2017. (Tr. 32-62). The ALJ issued an unfavorable decision on October 3, 2017, finding that Dehart was not disabled within the meaning of the Social Security Act. (Tr. 15-25).

         B. Summary Judgment Standard

         Summary judgment should be granted "if the movant shows that there is no genuine dispute to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see also Celtic Marine Corp. v. James C. Justice Cos., 760 F.3d 477, 481 (5th Cir. 2014). A "genuine issue of material fact exists when the evidence is such that a reasonable jury could return a verdict for the non-movant." Davis-Lynch, Inc. v. Moreno, 667 F.3d 539, 549 (5th Cir. 2012). The moving party "has the burden of establishing that there is no genuine dispute of material fact." Id. at 550. To avoid summary judgment, "the non-movant must go beyond the pleadings and come forward with specific facts indicating a genuine issue for trial." Id. at 550. The non-moving party may "defeat the motion by showing a genuine dispute of material fact." Johnston v. City of Houston, 14 F.3d 1156, 1060 (5th Cir. 1994). "'[A]ll facts and evidence must be taken in the light most favorable to the non-movant.'" Walker v. Blanchard Ref. Co., LLC, No. 3:17-CV-391, 2019 WL 4054044, *2 (S.D. Tex., Aug. 28, 2019) (quoting Davis-Lynch, Inc., 667 F.3d. at 549-50).

         C. Burden of Proof for Entitlement to Social Security Benefits

         A disability is found when one 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 expect to last for a continuous period of not less than 12 months." 42 U.S.C. § 423 (d)(1)(A); see also Graves v. Colvin, 837 F.3d 589, 592 (5th Cir. 2016). The ALJ uses "a five-step sequential process to evaluate claims of disability." The five steps include:

(1) the claimant is not working in substantial gainful activity; (2) the claimant has a severe impairment; (3) the claimant's impairment meets or equals a listed impairment in Appendix 1 of the Regulations; (4) the impairment prevents the claimant from doing past relevant work; and (5) the impairment prevents the claimant from doing any other work in the national economy.

Newton v. Apfel, 209 F.3d 448, 453 (5th Cir. 2000); see also 42 U.S.C. § 423 (d)(2)(A). The burden of proof lies with the claimant to establish the first four steps and then "shifts to the Commissioner for the fifth step." Id. A "finding that a claimant is disabled or is not disabled at any point in the five-step review is conclusive and terminates the analysis." Lovelace v. Bowen, 813 F.2d 55, 58 (5th Cir. 1987).

         Under the first step, "substantial" activity means, "work activity that involves doing significant physical or mental activities" and "gainful" activity is "work that you do for pay or profit." 20 C.F.R. § 416.972. If an ALJ finds that an individual is working and engaged in such substantial gainful activity, a disability will not be found, regardless of the medical findings. Wren v. Sullivan, 925 F.2d 123, 125 (5th Cir. 1991). In the second step, a "severe" impairment is one that significantly limits the individual's physical or mental ability to do basic work activities. C.F.R. § 416.920. The Fifth Circuit Court has held that "[a]n 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." Loza v. Apfel, 219 F.3d 378, 391 (5th Cir. 2000). This step requires the claimant to make a de minimus showing. Id. If the ALJ finds that the claimant does not have a disability, either physical or mental, that significantly limits their ability to do basic work activities, then the claimant does not have a severe impairment, and therefore is not disabled. 20 C.F.R. § 416.920(c).

         Step three requires allows for the finding of a disability if the claimant's impairment meets or equals a listed impairment in Appendix 1 of the Regulations. This means that if an impairment is met as one of the listed, the ALJ will find the claimant disabled "without considering [their] age, education, and work experience." 20 C.F.R. § 416.920(d). If the claimant's impairment does not meet or equal a listed impairment, then the ALJ "will assess and make a finding about [the claimant's] residual functional capacity based on all the relevant medical and other evidence in [the] case record . . . ." Id. The fourth step requires the ALJ to determine whether the claimant can perform their past relevant work, using the residual functional capacity ("RFC") assessment.[3] 20 C.F.R. § 416.920(e). If an individual is "capable of performing the work he has done in the past, a finding of "not disabled" must be made." Wren, 924 F.2d at 125. If the claimant meets her burden for the first four steps, then the burden shifts to the ALJ for the fifth step in which the ALJ considers the claimants RFC, age, education, and work experience, to determine whether the claimant may do other worth "existing in the national economy." 20 C.F.R. § 416.920(a)(4)(v).

         D. Judicial Review

         The "federal courts review the Commissioner's denial of social security benefits only to ascertain whether (1) the final decision is supported by substantial evidence and (2) whether the commissioner used the proper legal standards to evaluate the evidence." Newton v. Apfel, 209 F.3d 448, 452 (5th Cir. 2000). Substantial evidence means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). The standard is "more than a mere scintilla and less than a preponderance." Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995). The evidence is not reweighed or substituted for the reviewing court's judgment in review. Id. If "the Commissioner's findings are supported by substantial evidence, they must be affirmed." Newton, 209 F.3d at 452. This court "will not re-weigh the evidence, try the questions de novo, or substitute our judgment for the Commissioner's, even if we believe the evidence weighs against the Commissioner's decision." Master son v. Barnhart, 309 F.3d 267, 272 (5th Cir. 2002). "Conflicts in the evidence are for the Commissioner to resolve, not the courts." Id. A "finding of no substantial evidence is appropriate only if no credible evidentiary choices or medical findings supports the decision." Boyd v. Apfel, 239 F.3d 698, 704 (5th Cir. 2001).

         To determine whether substantial evidence supports the ALJ's decision, the court weighs four factors: (1) objective medical facts; (2) diagnosis and opinions of treating and examining physicians; (3) claimants' subjective evidence of pain and disability; and (4) claimants age, education, and work history. Wren v. Sullivan, 925 F.2d 123, 126 (5th Cir. 1991).

         E. Objective Medical Evidence

         Dr. Miguel Morales, M.D., ordered an MRI of the lumbar spine, without contrast, dated August 27, 2011. (Ex. IF at 288). The MRI results showed the following findings:

the numbering schema assumes 5 lumbar type vertebral bodies and is saved in the PACS system for purposes. Vertebral bodies maintain height and alignment. Small Tl and T2 hyperintense lesions are seen in the L4, L5, and T12 vertebral bodies, likely small hemangiomas. No. focal worrisome marrow lesion is seen. No mild disc desiccation L4-L5 and L5-S1. Facet joint alignment anatomic. Conus terminates at LI and is unremarkable. No. findings of arachnoiditis. L1-L2- No. foraminal narrowing or canal stenosis. L2-L3- No. foraminal narrowing or canal stenosis. L3-L4- No. canal stenosis is present on examination. There is a far left foraminal/extraforaminal disc extrusion measuring 7 mm AP and approximately 10 mm at its base. This may indent upon the exiting left L3 nerve root. Moderate left foraminal narrowing is noted. L4-L5- Mild concentric disc bulge. Small posterior annular tear. Moderate facet arthropathy. No. significant canal stenosis. Mild bilateral foraminal narrowing. L5-S1- Concentric disc bulge. Moderate facet arthropathy. No. significant canal stenosis. Mild bilateral foraminal narrowing is seen. IMPRESSION- Degenerative changes most significant at ¶ 3-L4 through L5-S1 as detailed above. No. significant canal stenosis at any level. Disc extrusion at ¶ 3-L4.

(Ex. IF at 291-92). Dehart also visited with Yamakawa Tatsuo, M.D., who conducted diagnostic radiography on April 23, 2012. Dr. Tatsuo found that "[t]he vertebral bodies are within normal alignment. The disc spaces are maintained. No. compression or displaced fractures are seen. The prevertebral soft tissues are unremarkable." (Ex. IF at 300). His impression was that "[n]o acute cervical spine abnormalities are visualized. Id.

         Dehart went to the emergency room at Memorial Hermann Hospital on April 22, 2013 due to a motor vehicle accident from the previous day. (Tr. 294). She complained of pain in her chest, abdomen, and neck. (Tr. 313). The treatment shows that she exhibited moderate vertebral tenderness in the mid cervical spine and anterior chest. (Tr. 313). She also had tenderness in the abdomen and mild vertebral tenderness in the thoracic and lumbar spine region. (Tr. 314).

         On November 11, 2014, Dehart began treatment with Michael J. Barber, M.D. Dehart reported a history of depression, mood symptoms, and stated she was bipolar. (Tr. 387). She described feelings of depression, irritability, and anger that lasted weeks at a time. (Tr. 387). When depressed, Dehart reported that she had low appetite, insomnia, low energy and motivation, and low concentration. (Tr. 387). She also reported episodes of elevated mood for up to two weeks and other symptoms including racing thoughts, increased talking, decreased need for sleep, impulsive risky behavior, and paranoia. (Tr. 387). On examination, her mood was depressed and anxious, and her affect was blunted. (Tr. 388). Based on his clinical examination findings, Dr. Barber tapered off Dehart's dosage of [Effexor] and replaced with Lamictal. (Tr. 389). She was also instructed to cut back and stop benzodiazepines and opiates prescribed by other providers. (Tr. 389).

         Dehart visited with Dr. Barber on December 11, 2014, reporting that her medication changes had helped decrease her depression. (Tr. 384). She had no suicidal thoughts. (Tr. 384). On examination, Dr. Barber noted that Dehart's mood was less depressed and her affect was blunted. (Tr. 384). Dr. Barber increased the dosage of Lamictal. (Tr. 385). On January 28, 2015, Dehart reported that she was not doing well. (Tr. 381). She felt more depressed, and sleep and appetite had decreased. (Tr. 381). On examination, Dr. Barber's progress notes confirm that Dehart's speech was soft, mood was depressed, and affect was blunted. (Tr. 381). Dr. Barber increased the dosage of Lamictal was increased and added Ability and Lunesta. (Tr. 382).

         Dehart began treatment with pain management specialist Cheor Kim, M.D., on March 4, 2015. (Tr. 511). She complained of chronic throbbing sharp lower back pain radiating into her legs, pain in her neck and shoulders, and severe pain in her tailbone. (Tr. 511). She also complained of a tingling sensation associated with the pain and that her pain was aggravated by bending forward, standing, sitting, lifting, walking, and the cold. (Tr. 511). On examination, Dehart had wheezing on inspiration and expiration, bowel sounds were remote, and she had an unsteady and antalgic gait with positive Rhomberg test. (Tr. 512). Dr. Kim prescribed Indomethacin ER, Lyrica, Methadone, Hydrocodone, and Lidoderm patches. (Tr. 512-13). On March 31, 2015, Dehart followed up with Dr. Kim, who again noted an antalgic and unsteady gait with positive Rhomberg. (Tr. 509). The Lyrica was increased from lOOmg to 150mg. (Tr. 510).

         Dehart had a follow up mental health treatment with Gwendolyn R. Dejean, PMHNP, on April 6, 2015. (Tr. 365). She reported that she was doing well, she had lost weight, and her mood was stable. (Tr. 365). She complained of mild irritability/agitation, that it was much improved. (Tr. 365). The ...

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