The opinion
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
NATHANIEL FELTON BRANCH, JR., §
§
Plaintiff, §
§
V. § No. 3:19-cv-6-BN
§
ANDREW SAUL,1 Commissioner of §
Social Security §
§
Defendant. §
MEMORANDUM OPINION AND ORDER
Plaintiff Nathaniel F. B., Jr. seeks judicial review of a final adverse decision of
the Commissioner of Social Security pursuant to 42 U.S.C. § 405(g). For the reasons
explained below, the hearing decision is reversed.
Background
Plaintiff alleges that he is disabled due to a variety of ailments including back
difficulties, stroke, right side paralysis, problems with short and long-term memory,
and difficulties walking and with speech. After his application for disability insurance
benefits was denied initially and on reconsideration, Plaintiff requested a hearing
before an administrative law judge (“ALJ”). That hearing was held on October 11,
2017. See Dkt. No. 13-1 at 43-63. At the time of the hearing, Plaintiff was 54 years old.
1Andrew M. Saul took office as the Commissioner of the Social Security
Administration on June 17, 2019. Commissioner Saul is automatically substituted as
a party pursuant to Federal Rule of Civil Procedure 25(d). See also section 205(g) of the
Social Security Act, 42 U.S.C. § 405(g) (action survives regardless of any change in the
person occupying the office of Commissioner of Social Security).
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He is a high school graduate and has past work experience as a tow truck driver,
restaurant manager, sales engineer, and customer sales representative. Plaintiff did
not engage in substantial gainful activity during the period from the alleged onset date
of April 14, 2014 through the date last insured of December 31, 2014 (“the relevant
period”).
The ALJ found that Plaintiff was not disabled during the relevant period and
therefore not entitled to disability benefits. See id. at 19-25. Although the medical
evidence established that through the date last insured Plaintiff suffered from
degenerative disc disease, hypertension, and obesity, the ALJ concluded that the
severity of those impairments did not meet or equal any impairment listed in the social
security regulations. The ALJ further determined that through the date last insured
Plaintiff had the residual functional capacity (“RFC”) to perform a limited range of
light work, and could return to his past relevant employment as an outside sales
representative, customer service representative, ticket seller, host and restaurant
manager. Alternatively, relying on a vocational expert’s testimony, the ALJ found that
Plaintiff was capable of working as a price tagger, office cleaner and cashier – jobs that
exist in significant numbers in the national economy.
Plaintiff appealed that decision to the Appeals Council. The Council affirmed.
In a single ground for relief, Plaintiff contends that the ALJ’s RFC is contrary
to Ripley v. Chater, 67 F.3d 552 (5th Cir. 1995), because no physician indicated how
Plaintiff’s back impairment affected his ability to work and the only evidence of that
came from Plaintiff’s testimony.
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The Court determines that the hearing decision must be reversed and this case
remanded to the Commissioner of Social Security for further proceedings consistent
with this opinion.
Legal Standards
Judicial review in social security cases is limited to determining whether the
Commissioner’s decision is supported by substantial evidence on the record as a whole
and whether Commissioner applied the proper legal standards to evaluate the
evidence. See 42 U.S.C. § 405(g); Copeland v. Colvin, 771 F.3d 920, 923 (5th Cir. 2014);
Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995). Substantial evidence is “more than
a mere scintilla. It 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);
accord Copeland, 771 F.3d at 923. The Commissioner, rather than the courts, must
resolve conflicts in the evidence, including weighing conflicting testimony and
determining witnesses’ credibility, and the Court does not try the issues de novo. See
Martinez v. Chater, 64 F.3d 172, 174 (5th Cir. 1995); Greenspan v. Shalala, 38 F.3d
232, 237 (5th Cir. 1994). This Court may not reweigh the evidence or substitute its
judgment for the Commissioner’s but must scrutinize the entire record to ascertain
whether substantial evidence supports the hearing decision. See Copeland, 771 F.3d
at 923; Hollis v. Bowen, 837 F.2d 1378, 1383 (5th Cir. 1988). The Court “may affirm
only on the grounds that the Commissioner stated for [the] decision.” Copeland, 771
F.3d at 923.
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“In order to qualify for disability insurance benefits or [supplemental security
income], a claimant must suffer from a disability.” Id. (citing 42 U.S.C. § 423(d)(1)(A)).
A disabled worker is entitled to monthly social security benefits if certain conditions
are met. See 42 U.S.C. § 423(a). The Act defines “disability” as the inability to engage
in substantial gainful activity by reason of any medically determinable physical or
mental impairment that can be expected to result in death or last for a continued
period of 12 months. See id. § 423(d)(1)(A); see also Copeland, 771 F.3d at 923; Cook v.
Heckler, 750 F.2d 391, 393 (5th Cir. 1985).
“In evaluating a disability claim, the Commissioner conducts a five-step
sequential analysis to determine whether (1) the claimant is presently working; (2) the
claimant has a severe impairment; (3) the impairment meets or equals an impairment
listed in appendix 1 of the social security regulations; (4) the impairment prevents the
claimant from doing past relevant work; and (5) the impairment prevents the claimant
from doing any other substantial gainful activity.” Audler v. Astrue, 501 F.3d 446, 447-
48 (5th Cir. 2007).
The claimant bears the initial burden of establishing a disability through the
first four steps of the analysis; on the fifth, the burden shifts to the Commissioner to
show that there is other substantial work in the national economy that the claimant
can perform. See Copeland, 771 F.3d at 923; Audler, 501 F.3d at 448. A finding that the
claimant is disabled or not disabled at any point in the five-step review is conclusive
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and terminates the analysis. See Copeland, 771 F.3d at 923; Lovelace v. Bowen, 813
F.2d 55, 58 (5th Cir. 1987).
In reviewing the propriety of a decision that a claimant is not disabled, the
Court’s function is to ascertain whether the record as a whole contains substantial
evidence to support the Commissioner’s final decision. The Court weighs four elements
to determine whether there is substantial evidence of disability: (1) objective medical
facts; (2) diagnoses and opinions of treating and examining physicians; (3) subjective
evidence of pain and disability; and (4) the claimant’s age, education, and work history.
See Martinez, 64 F.3d at 174.
The ALJ has a duty to fully and fairly develop the facts relating to a claim for
disability benefits. See Ripley, 67 F.3d at 557. If the ALJ does not satisfy this duty, the
resulting decision is not substantially justified. See id. However, the Court does not
hold the ALJ to procedural perfection and will reverse the ALJ’s decision as not
supported by substantial evidence where the claimant shows that the ALJ failed to
fulfill the duty to adequately develop the record only if that failure prejudiced Plaintiff,
see Jones v. Astrue, 691 F.3d 730, 733 (5th Cir. 2012) – that is, only if Plaintiff’s
substantial rights have been affected, see Audler, 501 F.3d at 448. “Prejudice can be
established by showing that additional evidence would have been produced if the ALJ
had fully developed the record, and that the additional evidence might have led to a
different decision.” Ripley, 67 F.3d at 557 n.22. Put another way, Plaintiff “must show
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that he could and would have adduced evidence that might have altered the result.”
Brock v. Chater, 84 F.3d 726, 728-29 (5th Cir. 1996).
Analysis
Plaintiff’s sole ground–that the ALJ’s residual RFC is not supported by a
medical opinion and is therefore not supported by substantial evidence–compels
remand.2 Specifically, Plaintiff argues that the ALJ’s RFC is inconsistent with Ripley
v. Chater, 67 F.3d 552 (5th Cir. 1995), because no physician identified work-related
limitations associated with his back impairment.
In Ripley, the claimant argued that the ALJ failed to develop the record fully
and fairly by finding that he could perform sedentary work even though there was no
medical testimony to support that conclusion. See id. at 552. The United States Court
of Appeals for the Fifth Circuit noted that, although an ALJ should usually request a
medical source statement describing the types of work that the applicant was still
capable of performing, the absence of such a statement did not necessarily make the
record incomplete. See id. Rather, the court had to consider whether there was
substantial evidence in the record to support the ALJ’s decision. See id. The record
contained “a vast amount of medical evidence” establishing that the claimant had a
back problem, but it did not clearly establish the effect of that problem on his ability
to work, so the ALJ’s RFC determination was not supported by substantial evidence.
See id. The Fifth Circuit remanded the case with instructions to the ALJ to obtain a
2 By remanding this case for further administrative proceedings, the Court does
not suggest that Plaintiff is or should be found disabled.
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report from a treating physician. See id. at 557-58. Notably, the Fifth Circuit rejected
the Commissioner’s argument that the medical reports that discussed the extent of the
claimant’s injuries substantially supported the ALJ’s conclusion because the Court was
unable to determine the effects of the claimant’s condition, “no matter how small,” on
his ability to work, absent a report from a qualified medical expert. See Lagrone v.
Colvin, No. 4:12-cv-792-Y, 2013 WL 6157164, at *9 (N.D. Tex. Nov. 22, 2013) (quoting
Ripley, 67 F.3d at 558 n.27).
Like Ripley, the record here contains evidence of Plaintiff’s back impairment.
On May 22, 2014, Plaintiff presented to Foundation Physicians Group for an
orthopedic consultation, reporting he recently sustained injuries to his back after a
motor vehicle accident. See Dkt. No. 13-1 at 288. Plaintiff described gradually
worsening back pain and estimated he could sit for twenty minutes, stand for ten
minutes, and walk for fifteen minutes. See id. Orthopedic physician Huntly Chapman
observed antalgic gait, and, on examination, he noted that cervical range of motion was
two-thirds of full with pain and stiffness in all planes. See id. at 289. He also reviewed
recent studies of the cervical, thoracic, and lumbar spine, which confirmed findings
suggestive of pain or spasm, an L1-L2 disc protrusion with spinal cord contact, and a
“sizable” tear at L2-L3, resulting in mild-to-moderate indentation of the thecal sac. See
id. at 288. Studies also confirmed cervical and lumbar spondylosis with loss of lumbar
disc height, endplate osteophytes, and facet hypertrophy. See id. at 272, 274, 288. Dr.
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Chapman prescribed Norco and Flexeril and advised Plaintiff to pursue physical
therapy. See id. at 289.
When Plaintiff returned the following month, he described worsening pain that
now radiated to his neck. See id. at 287. Dr. Chapman observed an antalgic gait,
adding that Plaintiff ambulated with a cane. See id. Lumbar range of motion was
“extremely limited,” and sensation loss was noted in the S1 distribution. Id. Dr.
Chapman’s impression was lumbar radiculopathy and sprain/strain of the lumbar and
cervical spine. See id. He recommended lumbar epidural steroid injections and a
lumbar CT study for further review. See id.
On August 28, 2014, Plaintiff underwent a CT study of the lumbar spine, which
revealed broad disc bulges at L3-L4, L4-L5, and L5-S1, the latter of which was
accompanied by findings of moderate bilateral neural forminal narrowing. See id. at
276. Radiologist Nicholas Iwasko, M.D., interpreted the findings as suggestive of
bilateral L5 nerve root infringement. See id. at 277. Plaintiff underwent epidural
steroid injections to the right L5 and S1 nerve roots. See id. at 278.
Plaintiff returned to Dr. Chapman on September 10, 2014, reporting that,
despite some improvement, his neck and low back pain remained an eight out of ten
on a ten-point pain intensity scale. See id. at 286. Dr. Chapman examined Plaintiff to
find a positive sitting straight-leg raise on the right and a positive Kemp’s test. See id.
Dr. Chapman refilled prescriptions for Norco and Flexeril, see id., and administered a
selective bilateral nerve root block at L2, see id. at 279.
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On September 26, 2014, Plaintiff returned to Foundation Physicians Group
where he was evaluated by Dr. James Stanley. See id. at 283. Plaintiff again endorsed
back pain, adding that it kept him awake all night. See id. On examination, Dr.
Stanley observed elevated blood pressure as well as mildly decreased lumbar range of
motion and paraspinal muscle tenderness. See id. at 283-84. Plaintiff also
demonstrated decreased sensation in the L5 distribution of the right foot, and straight-
leg raise was positive on the right. See id. at 284. After reviewing the recent imaging,
Dr. Stanley recommended nerve root blocks and further evaluation. See id.
Plaintiff returned to Dr. Stanley on October 31, 2014, reported temporary relief
from the nerve root block, but added that he had recently fallen due to weakness in his
legs. See id. at 281. As before, Dr. Stanley noted mildly decreased range of motion and
paraspinal muscle tenderness. See id. Dr. Stanley concluded that Plaintiff “tried and
failed conservative treatment,” and, in light of Plaintiff’s “significant foraminal
stenosis,” he recommended Plaintiff undergo lumbar fusion surgery at L2-L3 and L5-
S1. See id.
After December 31, 2014, the date last insured, Plaintiff continued to received
treatment for low back pain. He underwent an L2 and L5 laminectomy, L2-L3
discetomy with hardware removal, and L5-S1 fusion. Plaintiff also continued treatment
for type II diabetes, hypertension, and sequela from a stroke he sustained on July 30,
2015. Examinations variously revealed findings such as back tenderness, decreased
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sensation, motor loss, a positive straight-leg finding, and a slow limping gait with use
of a cane. See Dkt. No. 17 at 11 (record citations at notes 46-55).
At the administrative hearing, Plaintiff recounted his medical history, including
that he underwent back surgery in 2007. See id. at 54-54. According to Plaintiff, the
surgery was successful and allowed him to lead a relatively “normal life.” Id. at 54.
That all changed in April 2014 after a motor vehicle accident, causing Plaintiff to re-
injure his back, requiring steroid injections, and, ultimately, a July 19, 2017 spinal
infusion. See id. at 54, 56-57. When asked to describe his limitation at the time of the
accident, Plaintiff responded that he was unable to lift five pounds and could only walk
about ten minutes before needing to lie down. See id. at 57-58. He estimated that he
was able to stand for about five minutes but agreed that “lying down was the best way
to be.” Id. at 58.
Two State agency medical consultants (“SMACs”) examined Plaintiff’s medical
records at the initial and reconsideration stages of administrative review. At the initial
level, SAMC Shabnam Rehman, M.D. concluded on September 8, 2016 that there was
insufficient evidence prior to the date last insured for a medical evaluation. See Dkt.
No. 13-1 at 68. On reconsideration, SAMC Karen Lee, M.D. agreed that “[t]he evidence
is insufficient to make a medical assessment.” Id. at 78. Neither SAMC identified any
specific work-related limitation. See id. at 68, 78.
The ALJ found that, through the date last insured, Plaintiff had the RFC to sit
up to six hours, stand and walk six hours in an eight-hour day, and lift ten pounds
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frequently and twenty pounds occasionally. The ALJ also found that Plaintiff could
never climb ladders, ropes, or scaffolds, and could occasionally balance, stoop, kneel,
crouch, and crawl. See Dkt. No. 13-1 at 22.
The ALJ acknowledged that “[t]he [SAMCs] found there was insufficient
evidence to establish the claimant had debilitating limitations during the time that he
was insured for Title II benefits.” Id. But she did not identify any acceptable medical
source opinion as to how Plaintiff’s back impairments affected his ability to work.
Although the ALJ has the sole responsibility for evaluating a claimant’s RFC
based on the record as a whole, see 20 C.F.R. § 404.1546(c), “[s]he cannot independently
decide the effects of Plaintiff’s...impairments on [his] ability to work, as that is
expressly prohibited by Ripley,” Shugart v. Astrue, No. 3:12-CV-1705-BK, 2013 WL
991252, at *5 (N.D. Tex. Mar. 13, 2013). There are no medical opinions in the record
regarding the effects Plaintiff’s impairments had on his ability to work – rather, the
ALJ appears to have relied upon the medical evidence in determining Plaintiff’s RFC.
See Dkt. No. 13-1 at 22-23. None of that evidence addressed the effects of Plaintiff’s
back impairments on his ability to work, however. See Browning v. Barnhart, No. 1:01-
cv-637, 2003 WL 1831112, at *7 (E.D. Tex. Feb. 27, 2003) (finding despite the fact that
there was a vast amount of treating sources' medical evidence in the record
establishing that plaintiff suffered from certain impairments, including voluminous
progress reports, clinical notes, and lab reports, “none [made] any explicit or implied
reference to effects these conditions [had] on claimant’s ability to work” and the ALJ
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could not rely on that “raw medical evidence as substantial support for” the claimant’s
RFC).
The ALJ appears to have relied on her own opinion, which she may not do. See
Williams v. Astrue, 355 F. App'x 828, 832 n.6 (5th Cir. 2009) (explaining that “[a]n ALJ
may not – without the opinions from medical experts – derive the applicant’s residual
functional capacity based solely on the evidence of his or her claimed medical
conditions, [and] an ALJ may not rely on his own unsupported opinion as to the
limitations presented by the applicant’s medical conditions.”); Tyler v. Colvin, No.
3:15-cv-3917-D, 2016 WL 7386207, at *10 (N.D. Tex. Dec. 20, 2016) (finding that an
ALJ impermissibly relied on his own medical opinion to develop his RFC
determination). Davis v. Astrue, No. 1:11 CV-00267-SA-JMV, 2012 WL 6757440, at *5
(N.D. Miss. Nov. 6, 2012) (“In formulating a claimant’s RFC, the ALJ—a
layperson—may not substitute his own judgment for that of a physician.”)
The Court concludes that the final decision of the Commissioner is not supported
by substantial evidence because the ALJ made the RFC assessment without a medical
opinion addressing the effects of Plaintiff’s back impairments on his ability to work.
See Ripley, 67 F.3d at 557-58; Williams, 355 F. App'x at 832 n.6.
But the procedural error alone should not automatically result in reversal of the
Commissioner’s decision. “Procedural perfection in administrative proceeding is not
required,” and a court “will not vacate a judgment unless the substantial rights of a
party have been affected.” Mays v. Bowen, 837 F.2d 1362, 1364 (5th Cir. 1988) (per
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curiam). When an ALJ commits a Ripley error, remand “is appropriate only if [plaintiff]
shows that he was prejudiced.” Ripley, 67 F.3d at 557. “Prejudice can be established
by showing that additional evidence would have been produced if the ALJ had fully
developed the record, and that the additional evidence might have led to a different
decision.” Id. at 558 n.22. On this record, that is the case here based on the medical
evidence explained above.
Conclusion
The hearing decision is reversed and this case is remanded to the Commissioner
of Social Security for further proceedings consistent with this opinion.
DATED: March 31, 2020
Loe
UNITED STATES MAGISTRATE JUDGE
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