Bornette v. Barnhart

• Decision Date: 28 November 2006
• Docket Number: No. Civil Action No. 1:05-CV-590.,Civil Action No. 1:05-CV-590.
• Citation: 466 F.Supp.2d 811
• Parties: Ronney BORNETTE v. Jo Anne BARNHART, Commissioner of Social Security Administration.
• Court: U.S. District Court — Eastern District of Texas

466 F.Supp.2d 811

Ronney BORNETTE v. Jo Anne BARNHART, Commissioner of Social Security Administration.

No. Civil Action No. 1:05-CV-590.

United States District Court, E.D. Texas, Beaumont Division.

November 28, 2006.

COPYRIGHT MATERIAL OMITTED

Steven S. Packard, Packard Packard & Lapray, Lake Charles, LA, for Ronney Bornette.

William Winston Newbill, Social Security Administration, Dallas, TX, for Jo Anne Barnhart.

MEMORANDUM OPINION ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

CRONE, District Judge.

The Court heretofore ordered that this matter be referred to the Honorable Earl S. Hines, United States Magistrate Judge, for consideration pursuant to applicable law and orders of this Court. The Court has received and considered the Report of the United States Magistrate Judge pursuant to such order, along with the record, pleadings and all available evidence. No objections to the Report of the United States Magistrate Judge were filed by the parties.

Accordingly, the findings of fact and conclusions of law of the United States Magistrate Judge are correct, and the Report of the United States Magistrate Judge is ADOPTED. A Final Judgment will be entered separately, remanding this action to the Commissioner to consider all impairments; make a function-by-function assessment of plaintiffs residual functional capacity as required by Regulation 20 C.F.R. § 404.1545(b) and Social Security Ruling 96-8p; and reconsider plaintiffs application in light of any additional findings.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

HINES, United States Magistrate Judge.

This action requesting judicial review of the Commissioner of Social Security Administration's denial of an application for Disability Insurance benefits (DIB) and Supplemental Security Income (SSI) is referred to the undersigned for review and a recommended disposition.¹

I. PROCEEDINGS

DIB and SSI applicants must prove their "disability" as that term is defined in the Social Security Act. Plaintiff claimed disability due to an assortment of alleged impairments, viz., "back, knees, L [left] shoulder, heart, corpal tunnle sundrom (sic), joint pain, hearing." Tr. 79. His application proceeded to an evidentiary hearing before an administrative law judge (ALJ), Earl W. Crump. Tr. 290. Judge Crump considered plaintiff's application in accordance with a five-step sequential analysis prescribed by regulation and approved by courts.² ALJ Crump concluded that plaintiff established a prima facie case of disability by showing at Step 4 that he suffers from a severe impairment (degenerative joint disease) that precludes him from performing his past relevant work. However, ALJ Crump further determined that other evidence rebutted the prima facie case. Judge Crump found that plaintiff has "residual functional capacity" to perform light work with certain limitations, and that a person with such capacity and limitations can perform alternative available work. Specifically, and based on testimony from a vocational expert witness, ALJ Crump found that plaintiff retains the ability to work as "an usher/ticket taker, parking lot attendant, and mail clerk." Tr. 22, Finding 11. These findings generated a conclusion that plaintiff remains capable of engaging in substantial gainful employment, and thus is not disabled within the meaning of the statute.

II. POINTS OF ERROR

Judicial review of adverse Commissioner's decisions is limited to determinations of whether the decision is supported by substantial evidence and whether it reflects application of correct principles of law. 42 U.S.C. § 405 (2003). Plaintiff contends that the Commissioner failed to apply proper principles of law because:

1. The ALJ failed to properly perform a function by function assessment of the Plaintiff's Residual Functional Capacity by failing to discuss all of the Plaintiff's exertional and non-exertional limitations in accordance to 20 C.F.R. 404.1545, 416.945; and SSR 96-8p; and

2. The ALJ failed to consider all of Plaintiffs impairments.

Pl.'s Br. p. 1.

III. DISCUSSION AND ANALYSIS

Both points ultimately challenge ALJ Crump's determination of plaintiffs "residual functional capacity." Such determination, a requirement for both Step 4 and Step 5 findings, essentially delineates what, if anything, an applicant can still do despite the applicant's limitations³

A. Failure to Consider All Impairments

A just and valid administrative determination requires at a minimum consideration of all alleged impairments. See Loza v. Apfel, 219 F.3d 378, 393 (5th Cir.2000). The Commissioner acknowledges and embraces this rudimentary concept through an official regulation stating:

"[W]e will consider the combined effect of all of your impairments without regard to whether any such impairment, if considered separately, would be of sufficient severity [to be the basis of eligibility under the law]. If we do find a medically severe combination of impairments, the combined impact of the impairments will be considered throughout the disability determination process."

20 C.F.R. § 404.1523 (2006) (italics added).

Impairments and their severity are determined at Step 2 of the sequential evaluation process described earlier. Should legal error occur at this early stage, it would impact the remainder of the analysis, and likely would impugn the overall evaluation. Plaintiff contends that such an infective error occurred here because ALJ Crump's decision makes no reference to consideration of two of plaintiff's alleged impairments, viz., "uncontrolled hypertension" and "status post heart catheterization with coronary angiography and ventriculography as of April 23, 2003." Pl.'s Br., p. 20.

The record establishes unequivocally that plaintiff suffers from hypertension which requires intensive therapy for control. Tr. 217. Plaintiff reports numerous episodes of syncope (described by plaintiff as "fainting spells"),⁴ which may represent a side effect of hypertensive medications.⁵ Finally, the record suggests that plaintiff's hypertension is uncontrolled because he has not succeeded in losing weight or changing lifestyle. See Tr. 142, 149, 160, 180.

Plaintiff also alleged "heart" as limiting his ability to work (Tr. 79), and the record shows that he is under the care of a cardiologist, Dr. Pradip Morbia, M.D. Dr. Morbia performed a cardiac catheterization with coronary angiography in April, 2003, and discovered a coronary artery aneurysm. Tr. 157. Dr. Morbia also performed an abdominal aortogram with bilateral renal arteriogram in February, 2004. Tr. 216.

This point of error, therefore, is well-taken. The record reflects medical diseases or abnormalities that may constitute impairments. ALJ Crump clearly erred by failing to consider and evaluate them.

B. Failure to Perform Function by Function Assessment

Plaintiff argues that ALJ Crump made a residual functional capacity determination without first addressing any of the strength demands set forth in 20 C.F.R. 404.1545, 416.945 and Social Security Ruling 96-8p. Pl.'s Br., p. 13. To guide and inform the process of determining residual functional capacity, the Commissioner directs adjudicators to consider seven ordinary physical functions. Those physical functions are:

1. Sitting

2. Standing

3. Walking

4. Lifting

5. Carrying

6. Pushing

7. Pulling

See 20 C.F.R. § 404.1545(b) (2006). Moreover, an implementing Ruling directs adjudicators to perform this function-by-function assessment before expressing residual functional capacity in terms of exertional levels of work. Soc. Sec. R. 96-8p, at *5.

ALJ Crump found that plaintiff has residual functional capacity for "a significant range of light work" with specified limitations. Tr. 20. However, ALJ Crump did not incorporate a function-by-function assessment into his decision. ALJ Crump only recited strength demands for light work generally, and such recitation clearly does not suffice as the type of individualized assessment required by Regulation 20 C.F.R. § 404.1545(b) and Social Security Ruling 96-8p.

Accordingly, this point of error also is well-taken. ALJ Crump made his residual functional capacity in disregard and violation of governing law.

C. Effect of the Errors

Not every error warrants reversal or remand. Both errors identified above constitute violation or disregard of an internal policy ruling or an implementing regulation. Reversal and remand for failure to comply with a ruling is appropriate only when a complainant affirmatively demonstrates ensuant prejudice. Hall v. Schweiker, 660 F.2d 116, 119 (5th Cir.1981) (citing Pacific Molasses Co. v. Fed. Trade Comm'r, 356 F.2d 386 (1966)); see also Morton v. Ruiz, 415 U.S. 199, 94 S.Ct. 1055, 39 L.Ed.2d 270 (1974). Courts may not reverse and remand for failure to comply with a regulation without first considering whether the error was harmless. See Frank v. Barnhart, 326 F.3d 618, 622 (5th Cir.2003).

Prejudice and harmless error analysis, although different procedurally, are similar in substance. A claimant establishes prejudice by showing that adherence to the ruling might have led to a different decision. Newton v. Apfel, 209 F.3d 448, 458 (5th Cir.2000) (citing Ripley v. Chater, 67 F.3d 552, 557 (5th Cir.1995)) (Ripley ultimately citing Kane v. Heckler, 731 F.2d 1216 (5th Cir.1984)). Harmless error exists when it is inconceivable that a different administrative conclusion would have been reached absent the error. Frank v. Barnhart, 326 F.3d at 622; Fisher v. Bowen, 869 F.2d 1055, 1057 (7th Cir.1989) (error is harmless unless there is reason to think that remand might lead to a different result).

Whether ALJ Crump's errors were harmless, and whether plaintiff was prejudiced thereby are close questions in this case. On one hand, nothing in objective medical evidence indicates that any physician — treating, examining or evaluating — placed any limitation whatsoever on plaintiffs ability to perform work at any...