Brown v. Barnhart

• Decision Date: 12 June 2003
• Docket Number: No. CIV.A. H-02-4036.,CIV.A. H-02-4036.
• Parties: Billy J. BROWN, Plaintiff, v. Jo Anne B. BARNHART, Commissioner, Social Security Admin., Defendant.
• Court: U.S. District Court — Southern District of Texas

285 F.Supp.2d 919

Billy J. BROWN, Plaintiff, v. Jo Anne B. BARNHART, Commissioner, Social Security Admin., Defendant.

No. CIV.A. H-02-4036.

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

June 12, 2003.

COPYRIGHT MATERIAL OMITTED

Victor N Makris, Attorney at Law, Bellaire, TX, for plaintiff.

Cheryl Latrice Chapman, Office of the General Counsel, Social Security Admin., Dallas, TX, for defendant.

MEMORANDUM AND ORDER

ATLAS, District Judge.

This Social Security Act appeal was referred to Magistrate Judge Calvin Botley pursuant to 28 U.S.C. §§ 636(b)(1)(B). On May 16, 2003, Magistrate Judge Calvin Botley issued a Memorandum and Recommendation [Doc. # 17], suggesting that this Court grant Plaintiff's Motion for Summary Judgment [Doc. # 11], and deny Defendant's Cross Motion for Summary Judgment [Doc. # 14]. The time for objections to the Memorandum and Recommendation has expired without any objections having been filed. The Court finds that the Magistrate Judge's Memorandum and Recommendation is well founded, and that the Magistrate Judge's recommended dispositions should be adopted.¹ It is therefore

ORDERED that the Memorandum and Recommendation [Doc. # 17] is adopted as this Court's Memorandum and Order. It is further

ORDERED that the Commissioner's decision is REVERSED and that this case is REMANDED to the Commissioner pursuant to "sentence four" of section 405(g) for rehearing (1) to obtain an analysis of Brown's mental residual functional capacity from a competent psychiatrist who has reviewed all of Brown's medical records contained in the record including, but not limited to, the Bayshore Hospital records; (2) to evaluate Brown's disability and RFC in light of medication side-effects; and (3) to obtain a competent and credible evaluation of the availability and existence of jobs in the national and local economy that Brown can perform in light of all his limitations, physical and mental, should this issue continue to remain relevant following the additional disability evaluation that the ALJ is to conduct. It is further

ORDERED that Plaintiff's Motion for Summary Judgment [Doc. # 11] is GRANTED. It is further

ORDERED that Defendant's Cross Motion for Summary Judgment [Doc. # 14] is DENIED.

The Court will issue a separate Final Judgment.

MEMORANDUM AND RECOMMENDATIONS

BOTLEY, United States Magistrate Judge.

Plaintiff Billy J. Brown ("Brown"), seeks judicial review of the Social Security Administration's ("SSA") denial of his claim for social security disability benefits provided by Title II of the Social Security Act, 42 U.S.C. §§ 401, et seq. See Plaintiff's Motion for Summary Judgment (Entry # 11), Memorandum of Points and Authorities in Support of Plaintiff's Motion for Summary Judgment (Entry # 12) and Plaintiff's Response to Defendant's Motion for Summary Judgment (Entry # 16).¹ Defendant Jo Anne B. Barnhart, Commissioner of Social Security ("Commissioner"), urges her decision denying Brown's claim for benefits be upheld and maintains that Brown was not disabled as he was capable of performing certain limited light work, and that such work exists in significant numbers in the national economy. See Defendant's Cross Motion for Summary Judgment (Entry # 14), Brief in Support of Defendant's Cross Motion for Summary Judgment (Entry # 15).² Brown alleges numerous grounds of error. Brown contends that the Administrative Law Judge ("ALJ") erred by failing to consult a medical expert regarding his residual functional capacity ("RFC"). Brown further contends that a RFC finding should be made with respect not only to his physical impairments, but also his mental impairments. Additionally, Brown contends that the ALJ erred by formulating his own medical opinion of his mental impairment without the assistance of a medical expert; improperly relied upon the testimony of the vocational expert ("VE") in response to a hypothetical question which failed to incorporate all of his severe impairments; failed to consider the impact of side effects from multiple medications on his ability to work; failed to state why he rejected evidence favorable to him, evincing two additional severe impairments; failed to conduct a meaningful evaluation of the credibility of Brown and his witnesses; failed to determine whether he could maintain employment; and improperly found that he did not meet or equal Listing 12.04. Brown further contends that new evidence, received after the hearing, would have materially changed the outcome of the hearing had it been presented to the ALJ.

Conversely, the Commissioner contends that her finding that Brown was not disabled because he retains the residual functional capacity to perform other work existing in significant numbers in the national economy is premised upon substantial evidence and the proper application of the relevant legal standards. The Commissioner further contends that new medical evidence submitted to the Appeals Council does not warrant remand, as the ALJ properly found that Brown's alleged impairments did not meet or equal the requirements of Listing 12.04, and that the ALJ did not err in finding that Brown experienced no medication side effects, or in not specifically acknowledging Brown's alleged fibromyalgia or tinnitus.

THE FACTUAL AND PROCEDURAL BACKGROUND

The Medical History and Alleged Impairments

Brown was 41 years old at the time of his hearing. He has a ninth grade education and past relevant work experience as a heavy equipment operator and landscaper. (Tr. 19).³ In 1970, Brown fractured his left leg in eight places. In 1984, he broke his left leg again when a pipe was dropped on him, and also suffered back problems as a result. In 1994, Brown fractured his left wrist and left clavicle in a fall. (R. 209). He was diagnosed with a seizure disorder in 1994 and had been taking a daily dosage of 600 mg of Dilantin, an anti-seizure medication, until approximately the middle of 1999, when the dosage was reduced to 300 mg.⁴ (R. 209). Brown lost his drivers' license as a result of the seizures, which reportedly led to depression and suicide attempts. (Tr. 46). He was hospitalized in a psychiatric facility in approximately 1989. (R. 196). No records appear in the file related to his psychiatric hospitalization. Records do reveal, however, that Brown was treated by the Harris County Hospital District in Houston, Texas ("HCHD") on July 5, 1992, for a stab wound to the chest from an icepick (R. 136). Brown claims that he has suffered from tinnitus since approximately 1979,⁵ and that he has had a fungal infection in his chest since approximately 1998, for which he was taking antifungal medication.⁶ (R. 209).

HCHD records, dated April 6, 1999, indicate that Brown was having suicidal thoughts, uncontrollable crying and was feeling resentment, rage, and depression. He was diagnosed at that time with depression and pneumonitis. (R. 160). Psychiatry Clinic records, dated May 6, 1999, from Ben Taub Hospital ("Ben Taub") in Houston, Texas indicate that Brown "has frequent episodes of anxiety, anger, [and] temper tantrums where he becomes uncontrollable" and that he has had frequent periods of major depression since 1995 when he sustained a major injury at work. (R. 146). Brown also complained of dizziness when standing up and was diagnosed at that time with major depression. (R. 147). An Outpatient Problem Summary sheet, dated May 6, 1999, indicates, among other things, that Brown was suffering from depressive disorder, panic disorder and acute stress. (R. 148).

Ben Taub Psychiatry Clinic records, dated June 23, 1999, indicate that Brown was "angry and intense" and admitted to five (5) prior suicide attempts in the past two years, including attempted overdosing and stabbing himself. He was diagnosed with major depressive disorder and dysthymia and given an Axis V diagnosis on the Global Assessment of Functioning ("GAF") Scale of 50.⁷ He was prescribed Zoloft, Klonopin and Buspar. (R. 131). Harris County Hospital District records, dated June 25, 1999, indicate that Brown was diagnosed with fibromyalgia. (R. 145).

Brown underwent a consultative examination with George T. Conklin, M.D. on August 25, 1999. (R. 195-198). It does not appear from Dr. Conklin's report that Dr. Conklin reviewed Brown's medical records. However, Dr. Conklin gave the following history:

[Brown] was in an accident in 1978 and suffered multiple fractures involving the right and left leg and left wrist. In 1981, he thinks the pin was removed from the right leg. He has been hospitalized for seizures at least three times. He had a sinus tumor which might have been a polyp removed at one time. He admits to having had a nervous breakdown. He states he has had trouble controlling his emotion [sic] and he cries. At times he feels like killing himself and he has tried twice, although not recently. Once he tried it by stabbing himself and once by overdosing. He is seeing a psychiatrist. He was hospitalized for psychiatric care about ten years ago. (R. 196).

Dr. Conklin obtained an x-ray of Brown's lumbar spine and pulmonary function studies, including diffusion capacity. (R. 197). According to Dr. Conklin, Brown's primary problem is low back pain. Brown also has chest pain, but both the back and chest pain are of an unclear etiology. Brown also reported that he has a fungal pneumonia which is under treatment. Dr. Conklin also specified that Brown "has a marked fatigue and it is unclear whether this is a medical condition or a psychological [sic]." (R. 197). According to Dr. Conklin, Brown "has a grand mal seizure disorder which has not been adequately controlled except perhaps in the last month." (R. 198).⁸ Dr. Conklin also determined that Brown "appears limited by his back pain which likely would prevent him from activities which would require lifting." (R. 198). Dr. Conklin also noted that Brown had an "unkempt" appearance. (R. 198).

In an undated Field Office Disability Report, agency...