Wittneben v. Berryhill, CIVIL ACTION NO. 3:18-CV-00174
| Decision Date | 12 March 2019 |
| Docket Number | CIVIL ACTION NO. 3:18-CV-00174 |
| Parties | KENNETH F. WITTNEBEN Plaintiff. v. NANCY A. BERRYHILL, ACTING COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION Defendant. |
| Court | U.S. District Court — Southern District of Texas |
Plaintiff Kenneth F. Wittneben ("Wittneben") seeks judicial review of an administrative decision denying his disability insurance benefits under Title II of the Social Security Act (the "Act"), 42 U.S.C. § 401 et seq.
All dispositive pretrial motions in this case have been referred to this Court for report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). Dkt. 11. Before the Court are competing motions for summary judgment filed by Wittneben and Defendant Nancy A. Berryhill, the Acting Commissioner of the Social Security Administration (the "Commissioner"). Dkts. 15 and 17. Having considered the motions, responsive briefing, record, and applicable law, the Court RECOMMENDS that Plaintiff, Kenneth Wittneben's Motion for Summary Judgment (Dkt. 15) be GRANTED; Defendant's Cross Motion for Summary Judgment (Dkt. 17) be DENIED; and the decision of the Administrative Law Judge ("ALJ") be REVERSED and REMANDED.
Wittneben filed a claim for social security disability benefits under Title II of the Act alleging disability as of September 1, 2010. Wittneben's application was initially denied and denied again upon reconsideration. Subsequently, an ALJ held a hearing and found Wittneben was not disabled. Wittneben filed an appeal with the Appeals Council. The Appeals Council denied review, making the ALJ's decision final. This appeal followed.
Under the Act, individuals who have contributed to the program and have a physical or mental disability may apply for disability insurance benefits. See 42 U.S.C. § 423. The Commissioner's decision to deny social security benefits is reviewed by the federal courts to determine whether (1) the Commissioner applied the proper legal standard, and (2) the Commissioner's factual findings are supported by substantial evidence. See Garcia v. Berryhill, 800 F.3d 700, 704 (5th Cir. 2018). "To be substantial, evidence must be relevant and sufficient for a reasonable mind to accept as adequate to support a conclusion; it must be more than a scintilla but it need not be a preponderance." Fraga v. Bowen, 810 F.2d 1296, 1302 (5th Cir. 1987) (citation omitted). "If the Commissioner's findings are supported by substantial evidence, they must be affirmed." Newton v. Apfel, 209 F.3d 448, 455 (5th Cir. 2000). "A finding of no substantial evidence is appropriate only if no credible evidentiary choices or medical findings support the decision." Boyd v. Apfel, 239 F.3d 698, 704 (5th Cir. 2001) (quoting Harris v. Apfel, 209 F.3d 413, 417 (5th Cir. 2000)). "Procedural perfection in administrative proceedings, however, is not required." Jones v.Colvin, 638 F. App'x 300, 303 (5th Cir. 2016) (citing Mays v. Bowen, 837 F.2d 1362, 1364 (5th Cir.1988)) (internal quotation marks omitted).
"[A] claimant is disabled only if she is incapable of engaging in any substantial gainful activity." Anthony v. Sullivan, 954 F.2d 289, 293 (5th Cir. 1992) (internal quotation marks, emphasis, and citation omitted). To determine if a claimant is disabled, the ALJ uses a sequential, five-step approach:
(1) whether the claimant is presently performing substantial gainful activity; (2) whether the claimant has a severe impairment; (3) whether the impairment meets or equals a listed impairment; (4) whether the impairment prevents the claimant from doing past relevant work; and (5) whether the impairment prevents the claimant from performing any other substantial gainful activity.
Salmond v. Berryhill, 892 F.3d 812, 817 (5th Cir. 2018) (quoting Kneeland v. Berryhill, 850 F.3d 749, 753 (5th Cir. 2017)).
"The claimant bears the burden of proof on the first four steps, but the Commissioner bears the burden on the fifth step." Salmond, 892 F.3d at 817 (citation omitted). Kneeland, 850 F.3d at 754 (internal quotation marks and citations omitted).
The Commissioner's decision must stand or fall with the reasons stated in the ALJ's final decision. See Newton, 209 F.3d at 455. Post hoc rationalizations for an agency decision are not to be considered by a reviewing court. See SEC v. Chenery Corp., 332U.S. 194, 196 (1947). Pennington v. Comm'r of Soc. Sec. Admin., No. 3:16-CV-230, 2017 WL 4351756, at *1 (S.D. Tex. Sept. 29, 2017) (citing Masterson v. Barnhart, 309 F.3d 267, 272 (5th Cir. 2002)).
The ALJ found at step one that Wittneben had not engaged in substantial gainful activity since September 1, 2010.
The ALJ found at step two that Wittneben had the following severe impairment: obesity.
At step three, the ALJ found that this impairment did not meet any of the Social Security Administration's listed impairments.
Prior to consideration of step four, the ALJ assessed Wittneben's RFC, as follows:
After careful consideration of the entire record, the undersigned finds that, through the date last insured, the claimant had the residual functional capacity to perform the full range of medium work as defined in 20 CFR 404.1567(c).
Dkt. 9-3 at 18. At step four, based on this RFC, the ALJ found that Wittneben is unable to perform any past relevant work. At step five, the ALJ considered Wittneben's age, education, work experience, and RFC in conjunction with the Medical Vocational Guidelines and the testimony of a vocational expert to determine if there was any other work he could perform. At the time of the ALJ's hearing, Wittneben was 60 years old, defined as an individual of advanced age, with at least a high school education. The ALJdetermined that transferability of job skills was not material in the determination of disability. The ALJ concluded that "[t]he claimant was not under a disability, as defined in the Social Security Act, at any time from September 1, 2010, the alleged onset date, through December 31, 2015, the date last insured (20 CFR 404.1520(g))." Id. at 22.
This appeal raises two issues: (1) whether the ALJ erred at step 2 when he found Wittneben's dementia and Alzheimer's disease diagnoses were not medically determinable impairments; and (2) whether the ALJ failed to fulfill his duty to develop the record when he did not order neuropsychological testing despite the recommendation of two medical experts. The Court will address each issue in turn.
1. Medically Determinable Mental Impairment
Wittneben argues that the ALJ erred at step two "in finding that dementia and/or Alzheimer's disease are not 'medically determinable impairments' based on a purposed 'lack of objective evidence' in the record." Dkt. 16 at 5. The Commissioner responds that "[s]ubstantial evidence demonstrates that Plaintiff's dementia and Alzheimer's disease were not medically determinable impairments, even if Plaintiff did have medically determinable mental impairments, they were not severe." Dkt. 17-1 at 6.
Legal Standard: The concept of disability is defined in the Social Security Act, as the "inability to engage in substantial gainful activity by reason of any medically determinable physical or mental impairment which . . . has lasted . . . for a continuous period of not less than 12 months." Hames v. Heckler, 707 F.2d 162, 164 (5th Cir. 1983) (citing 42 U.S.C. § 416(i)(1)). "A medically determinable 'physical or mental impairment'is an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." Maharajh v. Barnhart, 424 F. Supp. 2d 915, 924 (S.D. Tex. 2006) (citing Hames, 707 F.2d at 165 and 42 U.S.C. § 423(d)(3)). "[A]n individual is under a disability, only if his impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994) (quoting 42 U.S.C. § 423(d)(2)(A)) (internal quotation marks omitted).
"Medically acceptable evidence includes observations made by the physician during physical examinations and is not limited to the narrow strictures of laboratory findings or test results." Cruz v. Colvin, No. EP-12-CV-00179-ATB, 2013 WL 3338591, at *6 (W.D. Tex. July 1, 2013) (citing Loza v. Apfel, 219 F.3d 378, 393 (5th Cir. 2000)). When evaluating the severity of a claimant's mental impairment, the ALJ must specify the symptoms, signs, and laboratory findings that substantiate the presence of each impairment. See Cruz, 2013 WL 3338591, at *6 (citing Boyd, 239 F.3d at 705).
ALJ's Determination: In his opinion, the ALJ first addressed Wittneben's depression/dysthymia and found it was a medically determinable impairment but "caused no more than 'mild' limitation in any of the functional areas [and is] nonsevere." Dkt. 9-3 at 16. Wittneben does not challenge the ALJ's determination for this particular mental impairment. Next, the ALJ discussed Wittneben's other mental impairments. The ALJ concluded:
After a careful review of the evidence of record,...
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