1

The stamp mark indicates a filing date of May 24, 2000, however, the record indicates a protective filing date of April 19,

2000.

SS\R&R\DREW-54.REV-STEP5:2

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

JEFFRIE DREW, JR., §

§

Plaintiff, §

§

v. § 2:04-CV-0054

§

MICHAEL J. ASTRUE, §

Commissioner of Social Security, §

§

Defendant. §

REPORT AND RECOMMENDATION

TO REVERSE THE COMMISSIONER’S DECISION

AND REMAND FOR FURTHER ADMINISTRATIVE ACTION

Plaintiff JEFFRIE DREW, JR. brings this cause of action pursuant to 42 U.S.C. § 405(g),

seeking review of a final decision of defendant MICHAEL J. ASTRUE, Commissioner of Social

Security (Commissioner), denying plaintiff’s application for supplemental security income (SSI)

benefits. Both parties have filed briefs in this cause. For the reasons hereinafter expressed, the

undersigned United States Magistrate Judge recommends the Commissioner’s decision finding

plaintiff not disabled and not entitled to benefits be REVERSED and the case REMANDED for

proceedings consistent with this opinion.

I.

PROCEEDINGS

On April 19, 2000,1 plaintiff filed an application for SSI alleging he was disabled and that

 

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In a Disability Report, plaintiff alleged his condition first bothered him in September 1983, and that he became unable to

work because of his disabling condition on June 1986. (Tr. 63).

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such disability began on October 2, 1995.2 (Tr. 53-54). As conditions limiting his ability to

work, plaintiff listed “bad back, bad ankle, high blood pressure, [and] bad hearing in left ear.” 

(Tr. 63). Plaintiff acknowledged he was able to continue working after his conditions first

bothered him, but noted he worked “fewer hours because he could not stand up for long periods

of time” and could not do mechanic work. Plaintiff averred he stopped working because of his

back. 

Plaintiff advised he completed the 10th grade, and identified past work as a cotton gin

worker, gas station attendant, oil field worker, auto mechanic, and automobile detailer. (Tr. 64;

69). At the time he filed his application, plaintiff was 44-years-old.

The Social Security Administration denied benefits initially and upon reconsideration. 

On July 9, 2001, an administrative law judge (ALJ) conducted a hearing on plaintiff’s

application. (Tr. 238-73). On March 28, 2002, the ALJ rendered an unfavorable decision,

finding plaintiff not disabled and not entitled to benefits at any time relevant to the decision. (Tr.

11-18). The ALJ determined, “based on the credible evidence of record,” that plaintiff “suffers

from lumbar radiculopathy and a ruptured intervertebral disc at the L5-S1 level of his spine.” 

(Tr. 14). The ALJ further found that while “this impairment is severe, it does not singly or in

combination meet or equal the level of severity of any impairment listed in Appendix 1, Subpart

P, of Regulations No. 4.” (Tr. 14).

The ALJ found the medical reports documented plaintiff’s musculoskeletal problems,

referencing several reports dated from 1999 through 2001. (Tr. 15). The ALJ then noted

interrogatories answered by a consulting medical expert (ME), Dr. Jack Spencer, on November

 

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14, 2001, summarizing the ME’s answers as follows:

Dr. Spencer states that claimant suffers from lower back pain on extension and

lateral bending with a major neurological deficit, degenerative joint disease, and

solid union of an old ankle fracture. Dr. Spencer explains in these interrogatories

why, in his opinion , claimant’s impairments do not meet the level of severity set

forth in section 1.05 of the listing of impairments found in Appendix 1.

(emphasis added). The ALJ then found plaintiff’s allegations of disabling pain and discomfort

were not supported by the credible facts and findings. The ALJ found plaintiff had no side

effects of medication resulting in an inability to work, and noted plaintiff’s activities of daily

living were not curtailed to such an extent that would suggest an inability to engage in all work

activity. The ALJ acknowledged plaintiff experiences some pain and discomfort, but was not

persuaded that such pain and discomfort was of such severity as to preclude plaintiff from

engaging in all substantial gainful activity. (Tr. 15).

The ALJ, “based on the credible evidence of record,” found plaintiff retains the residual

functional capacity (RFC) to perform the “wide range” of work at the light exertional level. The

ALJ explained plaintiff is precluded from performing a full range of light work due to his need to

avoid more than occasional walking and his inability to climb a ladder, balance on a rail, or sit in

a crouched position. Based on this RFC, the ALJ found plaintiff could not perform the duties of

his past relevant work, “all of which required at least the ability to perform a full range of light

exertional work activity.” (Tr. 15).

The ALJ then noted the VE’s hearing testimony that other jobs exist in significant

numbers in the regional and national economies that are within plaintiff’s RFC, to wit: the job of

laundry folder, small product assembler, electronics worker, and cashier/checker. (Tr. 16). The

ALJ noted that if he had found plaintiff could perform a full range of light work, the grid would

have directed a conclusion that plaintiff was not disabled. However, as he found plaintiff could

 

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not perform the full range of light work, the ALJ noted he could only use the grid as guidelines

for determining the extent to which plaintiff’s occupational base had eroded and whether there

remained a significant number of jobs existing within the national economy which plaintiff could

perform. The ALJ concluded:

[C]onsidering the claimant’s age, education, and prior working experience, the

testimony of the vocational expert, and using Rules 202.13 and 202.14 as

guidelines for decision making, that there are a significant number of jobs

existing within the national economy which claimant can perform in spite of his

impairments and their associated limitations. 

The ALJ thus determined plaintiff was not under a disability at any time through the date of his

decision. (Tr. 16).

Upon the Appeals Council’s denial of plaintiff’s request for review on February 6, 2004,

the ALJ’s determination that plaintiff was not under a disability became the final decision of the

Commissioner. (Tr. 4-6). Plaintiff now seeks judicial review of the denial of benefits pursuant

to 42 U.S.C. § 405(g).

II.

STANDARD OF REVIEW

In reviewing disability determinations by the Commissioner, this court’s role is limited to

determining whether substantial evidence exists in the record, considered as a whole, to support

the Commissioner’s factual findings and whether any errors of law were made. Anderson v.

Sullivan, 887 F.2d 630, 633 (5th Cir. 1989). Substantial evidence is “such relevant evidence as a

responsible mind might accept to support a conclusion. It is more than a mere scintilla and less

than a preponderance.” Boyd v. Apfel, 239 F.3d 698, 704 (5th Cir. 2001). To determine whether

substantial evidence of disability exists, four elements of proof must be weighed: (1) objective

medical facts; (2) diagnoses and opinions of treating and examining physicians; (3) claimant’s

 

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subjective evidence of pain and disability; and (4) claimant’s age, education, and work history. 

Wren v. Sullivan, 925 F.2d 123, 126 (5th Cir. 1991) (citing DePaepe v. Richardson, 464 F.2d 92,

94(5th Cir. 1972)). If the Commissioner's findings are supported by substantial evidence, they

are conclusive, and the reviewing court may not substitute its own judgment for that of the

Commissioner, even if the court determines the evidence preponderates toward a different

finding. Strickland v. Harris, 615 F.2d 1103, 1106 (5th Cir. 1980). Conflicts in the evidence are

to be resolved by the Commissioner, not the courts, Laffoon v. Califano, 558 F.2d 253, 254 (5th

Cir. 1977), and only a "conspicuous absence of credible choices" or "no contrary medical

evidence" will produce a finding of no substantial evidence. Hames v. Heckler, 707 F.2d 162,

164 (5th Cir. 1983). Stated differently, the level of review is not de novo. The fact that the ALJ

could have found plaintiff to be disabled is not the issue. The ALJ did not do this, and the case

comes to federal court with the issue being limited to whether there was substantial evidence to

support the ALJ decision.

III.

ISSUES

Plaintiff’s brief in support of his complaint presents the following issues for review:

1. The ALJ committed prejudicial legal error in finding plaintiff’s

impairment does not meet a Listing; and

2. The ALJ’s finding that plaintiff has the RFC to perform a wide range of

light work is not supported by substantial evidence.

The ALJ made the determination that plaintiff is not disabled at Step Five of the five-step

sequential analysis. Therefore, this Court is limited to reviewing only whether there was

substantial evidence on the record as a whole supporting a finding that plaintiff retained the

ability to perform his past relevant work (PRW) and/or to perform other work that exists in

 

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Section 1.05C, Disorders of the spine, provided:

C. Other vertebrogenic disorders (e.g., herniated nucleus puplosus, spinal stenosis) with the following

persisting for at least 3 months despite prescribed therapy and expected to last 12 months. With

both 1 and 2: 

1. Pain, muscle spasm, and significant limitation of motion in the spine; and

2. Appropriate radicular distribution of significant motor loss with muscle weakness and

sensory and reflex loss.

 4Section 1.04C, Disorders of the spine, provided, as relevant here:

(E.g., herniated nucleus pulposus, spinal arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc

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significant numbers in the regional and national economies, and whether the proper legal

standards were applied in making this determination.

IV.

MERITS

The ALJ found plaintiff’s back impairments did not meet or equal a listed impairment

under Appendix 1 so as to be considered disabling. In making this finding, however, the ALJ

did not indicate the particular section under which he analyzed whether plaintiff’s impairment

met or equaled a listed impairment. The ALJ did refer to Dr. Spencer’s November 14, 2001

answers to interrogatories wherein the doctor explained why, in his opinion, plaintiff’s

impairments did not meet the level of severity set forth in section 1.05 of the listing of

impairments.3 (Tr. 15). Plaintiff contends this reference to the ME’s answers to interrogatories

indicates the ALJ relied on the written answers of Dr. Spencer in determining plaintiff’s back

impairments did not meet or equal a listed impairment. At the time Dr. Spencer answered the

interrogatories on November 14, 2001, section 1.05C of the Listings was the appropriate section

under which to analyze disorders of the spine. Effective February 19, 2002, however, the

musculoskeletal Listings were revised and the criteria for disorders of the spine were moved to

subsection 1.04.4 As plaintiff’s claim was pending as of the effective date of the new listings,

 

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disease, facet arthritis, vertebral fracture(, resulting in compromise of a nerve root (including the cauda

equina) or the spinal cord. With:

C. Lumbar spinal stenosis resulting in pseudoclaudication, established by findings on appropriate

medically acceptable imaging, manifested by chronic nonradicular pain and weakness, and

resulting in inability to ambulate effectively, as defined in 1.00B2b. 

 5“Pseudoclaudication, which may result from lumbar spinal stenosis, is manifested as pain and weakness, and may impair

ambulation. Symptoms are usually bilateral, in the low back, buttocks, or thighs, although some individuals may experience

only leg pain and, in a few cases, the leg pain may be unilateral. The pain generally does not follow a particular neuroanatomical distribution, i.e., it is distinctly different from the radicular type of pain seen with a herniated intervertebral disc, is

often of a dull, aching quality, which may be described as ‘discomfort’ or an ‘unpleasant sensation,’ or may be of even greater

severity, usually in the low back and radiating into the buttocks region bilaterally. The pain is provoked by extension of the

spine, as in walking or merely standing, but is reduced by leaning forward. The distance the individual has to walk before the

pain comes on may vary. . . . 20 C.F.R. Part 404, Subpt. P, App. 1, sec. 1.00K.3.

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and the ALJ had not yet rendered his decision, the ALJ should have considered plaintiff’s

impairment under the new listing. The ALJ’s decision, issued March 28, 2002, over a month

after the effective date of the new Listing, referenced only the superseded section 1.05C and did

not acknowledge the new Listing 1.04C. Further, the Appeals Council’s February 6, 2004 denial

of plaintiff’s request for review did not refer to the appropriate Listing, i.e., 1.04C, under which

plaintiff’s impairment was to be analyzed. Plaintiff maintains that “given the revision of the

Listings prior to the ALJ’s decision, and the ALJ’s and Appeals Council’s failure to recognize

the new listing, Defendant’s decision should be vacated and this case should be remanded to

Defendant for consideration as to whether Plaintiff’s spinal impairment(s) meets or medically

equals any of the impairments described in the current Sec. 1.04 of the Listings.”

Plaintiff further argues this legal error (i.e., applying the superseded Listing) committed

by defendant was prejudicial to plaintiff because the available evidence indicates the appropriate

Listing, Section 1.04C, would have been met as of June 2001. Specifically, plaintiff contends

the medical evidence established (1) a diagnosis of lumbar spinal stenosis; (2) established by

findings on appropriate medically acceptable imaging; (3) resulting in pseudoclaudication;5

 (4)

 

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manifested by chronic non-radicular pain and weakness; (5) resulting in inability to ambulate

effectively as defined in 1.00B2b. Plaintiff concludes the defendant’s decision should thus be

remanded for re-evaluation (with the aid of a ME) in relation to the current musculoskeletal

Listings.

Defendant concedes Section 1.04C, rather than Section 1.05C, was the regulation in

effect when the ALJ rendered his decision and when the Appeals Council denied review. 

Defendant maintains, however, that “the ALJ and the Appeals Council reviewed Drew’s claim

under Section 1.04 of the listings after revision” because such section was in effect at the time of

the ALJ’s decision and the Appeals Council’s denial of review. Defendant cites the SSA policy

that the “Commissioner expects Courts will review claims under standard effective when claim

was administratively decided.” Defendant also notes the ALJ did not specifically address the

criteria of Section 1.05C in his decision. Although admitting the ALJ’s decision also did not

specifically address the criteria of Section 1.04C, defendant argues “the ALJ explicitly

mentioned Drew’s back disorder and thus, clearly analyzed Drew for disorders of the spine

under Section 1.04C.” Defendant thus summarily concludes “the ALJ and the Appeals Council

applied the requirements of the appropriate listing, Section 1.04C, the listing currently in effect

at the time of their respective decisions, to determine that Drew did not meet the requirements of

the listing.”

There is absolutely no evidence of record indicating the ALJ or the Appeals Council

applied Section 1.04C, the appropriate listing, in analyzing whether plaintiff’s back disorders,

singly or in combination, met or equaled the level of severity required by Section 1.04C. In fact,

the only indication as to which section was, in fact, applied was the ALJ’s reference to Section

1.05C in his recitation of the ME’s opinions in his responses to interrogatories. Nothing in the 

 

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ALJ’s decision indicates otherwise. The undersigned finds plaintiff has shown an error of law

was committed by applying a regulation which had been superseded in reaching the decision

denying plaintiff benefits.

Defendant next argues, in conclusory fashion, that the “perceived deficiency” that the

ALJ utilized the incorrect regulation in analyzing whether plaintiff’s back impairments met or

equaled a listing “had no practical effect on the outcome of the case,” did not affect plaintiff’s

“substantial rights,” and does not warrant a remand. Defendant, however, makes no specific

argument in support of his position that this error does not justify a remand for purposes of

correcting the error and applying the proper Section.

Defendant further argues the medical evidence did not establish that plaintiff’s back

impairment met the new listing, Section 1.04C, and cites various medical records in support of

his position. The medical evidence in the record, however, does not eliminate the possibility that

plaintiff could be found to have a listed impairment. In point of fact, plaintiff has cited medical

evidence supporting a determination in his favor at Step 3. Further, even if there is medical

evidence negating a finding that plaintiff’s condition met or equaled each of the criteria under

the Listing set forth in Section 1.04C, no such determination was made at the administrative

level and it would be rank speculation on the part of the undersigned as to what the ALJ would

have actually determined had the appropriate listing been utilized during the evaluation of the

severity of plaintiff’s impairments at Step 3. Consequently, this case should be remanded for a

proper analysis of plaintiff’s back impairments under the criteria set forth in section 1.04C.

In his second ground, plaintiff argues the ALJ’s finding that plaintiff has the RFC to

perform a wide range of light work is not supported by substantial evidence because the RFC did 

 

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not include any limitations on the use of plaintiff’s hands and arms. Plaintiff points out his 

treating medical professionals prescribed the use of a wheeled walker on June 29, 2001 and on

July 11, 2001 (Tr. 109, 233) and notes his testimony at the July 9, 2001 hearing that he had been

using a walker for about three weeks and that he needed the walker because of dizziness due to

high blood pressure and numbness in his left leg. (Tr. 262-63). Citing SSR 83-10, plaintiff

notes the Administration has recognized light jobs generally “require the use of arms and hands

to grasp and to hold and turn objects” and that “[t]he requirement to use a hand-held assistive

device may []impact on the individual’s functional capacity by virtue of the fact that one or both

upper extremities are not available for such activities as lifting, carrying, pushing, and pulling.” 

20 C.F.R. Part 404, Subpt. P., App. 1, Sec. 1.00J.4. Despite plaintiff’s unrefuted prescribed use

of a walker and the Administration’s recognition that use of a hand-held assistive device may

impact functional capacity, the ALJ did not make any accommodation in plaintiff’s RFC for the

use of a walker. In fact, the ALJ did not make any reference to plaintiff’s medically prescribed

use of a walker or the effects thereof on plaintiff’s ability to use his upper extremity. Plaintiff

thus contends the ALJ’s RFC finding is not supported by substantial evidence and, in turn, his

ultimate finding of non-disability is likewise unsupported by substantial evidence as it rests on

VE testimony given in response to a hypothetical question which did not include plaintiff’s use

of a walker.

Plaintiff’s contention has substantial merit. The undersigned finds that on remand, the

ALJ shall directly address plaintiff’s use of a walker and any effect such use may have on

plaintiff’s ability to perform light work, as well as any effect such use may have on plaintiff’s

ability to perform the jobs identified by the VE or any other work plaintiff is determined to be 

 

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able to perform despite his impairments.

V.

RECOMMENDATION

It is the RECOMMENDATION of the undersigned United States Magistrate Judge to the

United States District Judge that the decision of the defendant Commissioner finding plaintiff

JEFFRIE DREW, JR. not disabled and not entitled to a period of disability benefits be

REVERSED as to the determination at Step 5 and the case be REMANDED for further

administrative findings at Step 5.

VI.

INSTRUCTIONS FOR SERVICE

The District Clerk is directed to send a copy of this Report and Recommendation to

plaintiff’s attorney of record and to the Assistant United States Attorney by the most efficient

means available. 

IT IS SO RECOMMENDED.

ENTERED this 26th day of February 2007.

 ______________________________________

 CLINTON E. AVERITTE

 UNITED STATES MAGISTRATE JUDGE

* NOTICE OF RIGHT TO OBJECT *

Any party may object to these proposed findings, conclusions and recommendation. In

the event a party wishes to object, they are hereby NOTIFIED that the deadline for filing

objections is eleven (11) days from the date of filing as indicated by the file mark on the first

page of this recommendation. Service is complete upon mailing, Fed. R. Civ. P. 5(b), and the

parties are allowed a 3-day service by mail extension, Fed. R. Civ. P. 6(e). Therefore, any

objections must be filed on or before the fourteenth (14th) day after this recommendation is

 

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filed. See 28 U.S.C. § 636(b); Fed. R. Civ. P. 72(b); R. 4(a)(1) of Miscellaneous Order No. 6,

as authorized by Local Rule 3.1, Local Rules of the United States District Courts for the

Northern District of Texas. 

Any such objections shall be made in a written pleading entitled “Objections to the

Report and Recommendation.” Objecting parties shall file the written objections with the United

States District Clerk and serve a copy of such objections on all other parties. A party’s failure to

timely file written objections to the proposed findings, conclusions, and recommendation

contained in this report shall bar an aggrieved party, except upon grounds of plain error, from

attacking on appeal the unobjected-to proposed factual findings, legal conclusions, and

recommendation set forth by the Magistrate Judge in this report and accepted by the district

court. See Douglass v. United Services Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996);

Rodriguez v. Bowen, 857 F.2d 275, 276-77 (5th Cir. 1988). 

 

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