Findings, Conclusions and Recommendation of

the United States Magistrate Judge–Page 1

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

NELLIE J. DAVIS, §

PLAINTIFF, §

§

VS. § CIVIL ACTION NO. 4:04-CV-384-Y

§

JO ANNE B. BARNHART, §

COMMISSIONER OF SOCIAL SECURITY, §

DEFENDANT. §

FINDINGS, CONCLUSIONS AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

AND

NOTICE AND ORDER

This case was referred to the United States Magistrate Judge pursuant to the provisions of

Title 28, United States Code, Section 636(b). The Findings, Conclusions and Recommendation of

the United States Magistrate Judge are as follows:

FINDINGS AND CONCLUSIONS

A. STATEMENT OF THE CASE

Plaintiff Nellie Davis brings this action pursuant to Section 405(g) of the Social Security Act,

Title 42 of the United States Code, for judicial review of a final decision of the Commissioner of

Social Security denying her claim for disability insurance benefits under Title II of the Social

Security Act. Davis applied for disability benefits on November 15, 2001, claiming she has been

disabled since April 19, 2000 by head and neck pain. (Tr. 78-79, 252). Davis met the requirements

for disability insured status through December 2003. (Tr. 250).

The Social Security Administration denied Davis’s application for benefits both initially and

 

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on reconsideration. Davis requested a hearing before an administrative law judge (the "ALJ"), and

ALJ Ward D. King held a hearing on February 24, 2003 in Fort Worth, Texas. (Tr. 28-52). Davis

was represented by counsel. On July 11, 2003, the ALJ issued an unfavorable decision and found

that Davis was not disabled because she had the residual functional capacity (RFC) to perform her

previous job as a file clerk. (Tr. 13-18). The Appeals Council declined Davis’s request for review

of the case, leaving the ALJ’s decision to stand as the final decision of the Commissioner. (Tr. 4).

B. STANDARD OF REVIEW

The Social Security Act defines a disability as a medically determinable physical or mental

impairment lasting at least twelve months that prevents the claimant from engaging in substantial

gainful activity. 42 U.S.C. § 423(d)(1)(A); McQueen v. Apfel, 168 F.3d 152, 154 (5th Cir. 1999).

To determine whether a claimant is disabled, and thus entitled to disability benefits, a five-step

analysis is employed. 20 C.F.R. § 404.1520. First, the claimant must not be presently working at

any substantial gainful activity. Substantial gainful activity is defined as work activity involving the

use of significant physical or mental abilities for pay or profit. 20 C.F.R. § 404.1527. Second, the

claimant must have an impairment or combination of impairments that is severe. 20 C.F.R. §

404.1520(c). At the third step, disability will be found if claimant’s impairment or combination of

impairments meets or equals an impairment listed in the appendix to the regulations. Id. §

404.1520(d). Fourth, if disability cannot be found on the basis of claimant’s medical status alone,

the impairment or impairments must prevent the claimant from returning to his past relevant work.

Id. § 404.1520(e). And fifth, the impairment must prevent the claimant from doing any work,

considering the claimant's residual functional capacity, age, education, and past work experience.

 

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Id. § 404.1520(f); Crowley v. Apfel, 197 F.3d 194, 197-98 (5th Cir.1999). 

At steps one through four, the burden of proof rests upon the claimant to show he is disabled.

If the claimant satisfies this responsibility, the burden shifts to the Commissioner at step five of the

process to show that there is other gainful employment the claimant is capable of performing in spite

of his existing impairments. Crowley, 197 F.3d at 198. If the Commissioner meets this burden, the

claimant must then prove that he cannot in fact perform the work suggested. Waters v. Barnhart, 276

F.3d 716, 718 (5th Cir. 2002). A finding at any point in the five-step process that a claimant is

disabled or not disabled is conclusive and terminates the analysis. Masterson v. Barnhart, 309 F.3d

267, 272 (5th Cir. 2002).

A denial of disability benefits is reviewed only to determine whether the Commissioner

applied the correct legal standards and whether the decision is supported by substantial evidence in

the record as a whole. Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995); Hollis v. Bowen, 837

F.2d 1378, 1382 (5th Cir. 1988). Substantial evidence is such relevant evidence as a responsible

mind might accept to support a conclusion. Boyd v. Apfel, 239 F.3d 698, 704 (5th Cir. 2001). It is

more than a mere scintilla, but less than a preponderance. Id. A finding of no substantial evidence

is appropriate only if no credible evidentiary choices or medical findings support the decision. Id.

Conflicts in the evidence are for the Commissioner and not the court to resolve. Masterson, 309

F.3d at 272. The court will not re-weigh the evidence, try the questions de novo, or substitute its

judgment for the Commissioner's, even if the court believes the evidence weighs against the

Commissioner's decision. Id.; Harris v. Apfel, 209 F.3d 413, 417 (5th Cir.2000); Hollis, 837 F.2d

at 1383.

 

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1

 Spondylosis is a general term for ankylosis of a vertebral joint or degenerative spinal changes due to

osteoarthritis. Dorland’s Illustrated Medical Dictionary 1684 (29th ed. 2000). Ankylosis refers to the immobility and

consolidation of a joint due to disease, injury or surgical procedure. Id. at 91. 

2 Arthropathy refers to any joint disease. Id. at 152.

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C. ISSUES

1. Whether the residual functional capacity (RFC) assessment is supported by

substantial evidence.

2. Whether the determination that Davis can perform her past relevant work as a file

clerk is supported by substantial evidence.

D. ADMINISTRATIVE RECORD

1. Medical History

Davis fell at work on April 19, 2000, injuring her neck and low back. She sought care from

chiropractor Douglas Beman. Beman performed chiropractic adjustments that helped Davis’s

headaches and neck pain, but did not help her low back symptoms. (Tr. 125). Beman ordered

magnetic resonance imaging (MRI) studies of Davis’s spine in November 2000. The MRI of

Davis’s cervical spine showed spondylosis1

 at C4-C5, C5-C6 and C6-C7 and a loss of disc space

height at these levels. There was no evidence of touching or effacement of the cervical spinal cord.

(Tr. 94). An MRI of Davis’s lumbar spine showed severe disc dessication at L2-L3 and minimal

effacement of the thecal sac at this level; post traumatic facet arthropathy2 at L4-L5 and L5-S1; and

a disc bulge or protrusion at L5-S1 extending into the thecal epidural space without touching or

effacing the thecal sac. (Tr. 96).

Beman referred Davis to Jerry Gurkoff, D.O., for evaluation on November 16, 2000.

 

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 Sacroiliitis is inflammation (arthritis) in the sacroiliac joint. Id. at 1593.

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Gurkoff reviewed the MRI studies and also performed a physical examination. Gurkoff observed

what he referred to as a pleasing range of motion in Davis’s cervical spine, with some increase in

sensation on the left as compared to the right. (Tr. 99). Davis’s deep tendon reflexes were 2+ and

equal bilaterally. Motor testing of Davis’s lower extremities demonstrated no gross weakness.

Straight leg raising on the left was unremarkable, but Davis expressed increased discomfort at

seventy degrees on the right. (Tr. 100). Gurkoff diagnosed cervical strain and sacroiliitis,3

 greater

on the right. There was no evidence of severe discogenic disease. Gurkoff opined that conservative

treatment measures should be continued because Davis was not a surgical candidate. (Tr. 100).

Davis also saw Alan B. Hurschman, M.D., beginning in February 2001. (Tr. 103-30). Davis

demonstrated full range of motion and normal muscle strength in her upper and lower extremities.

Straight leg testing was positive, and lumbar range of motion was limited. (Tr. 127). Hurshman

diagnosed cervical disc displacement, lumbar disc protrusion, post-traumatic headaches, and a

resolving left ankle sprain. He attributed these injuries to Davis’s fall the previous year. (Tr. 127).

Hurshman recommended pain injections to alleviate Davis’s symptoms, but when these

failed to provide relief, Hurshman administered a series of epidural steroid injections. (Tr. 105, 107-

08). These injections were partially successful, but provided only short-term relief. (Tr. 39, 103).

During an appointment on May 22, 2001, Hurshman noted that Davis was experiencing marked

anxiety symptoms and she complained of mood swings. (Tr. 112). Davis was released from

Hurshman’s care on September 25, 2001 with a recommendation that she be evaluated for surgery.

(Tr. 103).

 

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 A discogram is a radiographic study of an intervertebral disc. Id. at 526.

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Davis saw neurosurgeon Carlos Acosta, M.D., for evaluation. (Tr. 136). Acosta ordered

electromyography (EMG) and nerve conduction studies, which showed no evidence of

radiculopathy, myopathy, or neuropathy. (Tr. 141-42). Although Davis had mild bulging discs and

degenerative disc disease of her cervical spine, there was no evidence of herniation. (Tr. 133).

Acosta did not consider Davis a surgical candidate and discharged her from his care on February 7

,2002.

As part of her workers’ compensation claim, Davis was evaluated by chiropractor Todd

Ruland, D.C., at MetroPlex Mobile Diagnostics on April 4, 2002. (Tr. 222). Sensory and reflex

testing was within normal limits, but Davis exhibited significant weakness in her lower extremities.

Range of motion was noted to be restricted in her cervical and lumbar spine. Davis demonstrated

lifting ability and cardiovascular fitness that fell within the sedentary to light range of exertion. The

evaluator opined that Davis could frequently sit, stand and walk. (Tr. 224-25).

Davis was evaluated by Charles Murphy, M.D., as part of a worker’s compensation claim.

Murphy found that Davis had reached maximum medical improvement as of April 25, 2002 with

a 10% whole person impairment based on injury to her lumbar and cervical spine. (Tr. 191-98).

Davis saw John Milani, M.D., on May 8, 2002 for her complaints of lumbar pain. (Tr. 204).

Davis demonstrated a normal gait and no muscle spasms. Range of motion in her lumbar spine was

reduced by 50%. Sitting straight leg testing was negative, but supine straight leg testing was

positive on the right side. (Tr. 206). Milani assessed probable discogenic pain at L5-S1 and

recommended a discogram4

 for insight about the source of Davis’s pain. (Tr. 208).

 

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On May 21, 2002, Davis saw Bryan S. Drazner, M.D., for her ongoing low back complaints.

(Tr. 201). Davis walked with a modestly antalgic gait, favoring her right leg. She was able to

perform heel and toe walking. Straight leg raising elicited considerable pain on the right, and her

range of motion was reduced to 50% of normal. Deep tendon reflexes were 2+ and symmetrical,

and sensation was intact. Drazner diagnosed lumbar disc syndrome and cervical disc syndrome.

He renewed Davis’s prescription for Lortab and prescribed Ultracet for more moderate episodes of

pain. (Tr. 203).

Davis underwent a consultative mental health evaluation with Samir Wahby, M.D., on June

5, 2002. (Tr. 163). Davis was taking Nexium for acid reflux disease, hydrocodone and muscle

relaxants for back pain, Prozac, and Xanax. She reported being depressed for several years before

her work injury. Davis reported crying spells, mood swings, a negative outlook, and panic attacks,

and said she sometimes isolated herself from others. Davis informed Wahby that she had been

hospitalized in 1999 for suicidal thoughts. 

Davis had married and divorced four times. She stated that she lived with her father, and her

daily activities consisted of watching television and cooking for her father. She reported that she

cleaned the house, bought groceries, went to the mall, and talked on the telephone with a few

friends. Davis’s hobbies included ceramics and painting, and she sometimes went out to eat with

her sister and her daughter. Davis showered daily and cared for her own basic needs. Her father

assisted with the housework and did most of the laundry. (Tr. 164).

Davis made good eye contact during the interview and demonstrated average intelligence.

She was oriented and denied any hallucinations. Wahby noted that Davis demonstrated a flat affect

 

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with psychomotor retardation. (Tr. 164). Wahby diagnosed major depression and a panic disorder.

He opined that Davis had a poor prognosis because of chronic physical problems and chronic

depression that were “feeding into each other.” (Tr. 165).

2. Administrative Hearing

Davis was born November 22, 1947. She testified that she completed high school and had

obtained certification as a nurse’s aide. (Tr. 31). Davis had most recently worked as a file clerk for

an insurance company, but stopped working shortly after falling at work. (Tr. 35). She saw a

number of doctors for her back and neck pain, and later developed acid reflux disease that prevented

her from having a myelogram because of a risk of aspiration pneumonia. (Tr. 37-38).

Davis testified that the worst and most constant pain was in her low back and radiated into

her right leg. (Tr. 40-41). Narcotic pain relievers had helped somewhat, but she no longer used

narcotic medications. (Tr. 41, 46). Davis also described neck pain that radiated into her head and

shoulders, but the pain varied depending on her activity level. (Tr. 42). 

In addition to her back and neck complaints, Davis testified that she was taking Prozac for

depression and Xanax for treatment of anxiety attacks. (Tr. 40). Davis testified that she had

experienced crying spells and periods when she would isolate herself from others, and she did not

sleep well. (Tr. 42-43). She had also experienced substantial weight gain over the past few years.

(Tr. 43). Davis testified that she was unable to handle stress, was not very sociable, and had anxiety

attacks that made her feel like she was dying. Davis testified that her thinking was impaired and she

had to write down information if she wanted to remember it. (Tr. 45).

Davis lived with her father, who was eighty-eight years old. She testified that her father did

 

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the laundry, vacuuming and cooking. Davis testified that she was able to do the grocery shopping

by herself, but because of discomfort, did not drive long distances and needed friends or family to

driver her to her medical appointments. (Tr. 46). Davis estimated that she could stand or walk for

about thirty minutes at a time. (Tr. 47). She did not consider her ability to sit to be much better than

her ability to stand.

3. ALJ Decision

The ALJ found that Davis had not engaged in substantial gainful activity since her alleged

onset date and had severe medically determinable mental and physical impairments; however, her

impairments failed to meet or equal any listed impairment. (Tr. 17). The ALJ further found that

Davis’s assertion of a total inability to work was not wholly credible, although she did have some

exertional and nonexertional work-related limitations. (Tr. 16-17). Instead, the ALJ found that

Davis could perform the full range of medium work, except she required jobs with a reasoning

development level of 1, 2 or 3 as defined in the Dictionary of Occupational Titles (DOT). The ALJ

then considered Davis’s previous work as a file clerk, which the DOT described as light work

requiring a reasoning level of 3, and concluded that Davis’s residual functional capacity did not

preclude her from performing the demands of that job as customarily performed in the national

economy. (Tr. 17-18). Accordingly, the ALJ determined that Davis was not disabled or entitled

to a period of benefits at any relevant time through the date of his administrative decision. (Tr. 18).

E. DISCUSSION

1. Residual Functional Capacity

Davis asserts that the ALJ’s assessment of her residual functional capacity is not supported

 

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5

 The state agency medical consultants who reviewed Davis’s application for benefits initially and on

reconsideration opined that she could lift up to twenty five pounds frequently and fifty pounds occasionally; sit for

about six hours during a standard eight-hour workday; stand or walk for up to six hours during the workday; and had

no postural limitations. (Tr .144-50). The non-examining state agency psychologist who reviewed Davis’s mental

impairments opined that Davis retained the ability to perform simple work activities, interact with others, and

respond to changes. (Tr .170).

6

 The ALJ’s reference is to a portion of the functional capacity report dealing with Davis’s cardiac ability,

not strength. (Tr. 225). Davis’s concern that the ALJ treated the entire report as irrelevant to his determination is

unfounded.

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by substantial evidence. She complains that the ALJ erred in relying primarily on the reports from

the state agency physicians who reviewed her case because the state agency physicians did not have

the benefit of the functional capacity evaluation she completed in April 2002. Davis and the

Commissioner agree that the functional capacity evaluation does not qualify as a medical source

statement, but Davis asserts that the evaluation is composed of objective test results that are relevant

to an assessment of his RFC.

The ALJ found his assessment of Davis’s RFC was supported by the state agency physicians

and agreed with the physicians’ determination that Davis’s impairments did not preclude all work

activity.5

 (Tr. 17). But the ALJ also considered the results of the April 2002 functional capacity

evaluation, which found Davis capable of lifting up to twenty pounds and sitting, standing or

walking on a frequent basis. The ALJ found that the evaluator’s opinion that Davis had a fitness

level6

 compatible with sedentary or light exertion had no bearing on the disability decision, and

noted that the questionnaire Davis had completed for the functional capacity evaluation reflected

more restricted activities than she had reported elsewhere. (Tr. 17).

The ALJ reviewed Davis’s medical history and the observations of treating medical sources

who evaluated her neck and back injuries. He conceded that Davis could be expected to experience

 

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mild to moderate back pain, but noted that a person need not be pain free to engage in substantial

gainful activity. (Tr. 16). The ALJ also found that Davis described daily activities and social

activities that were inconsistent with her assertions of disability and she managed these activities

despite the combination of her physical and mental impairments. (Tr.16).

Davis has not demonstrated that the April 2002 functional capacity evaluation is a decisive

measure of her ability to engage in work activity, nor has she demonstrated a lack of substantial

evidence to support the ALJ’s assessment of her residual functional capacity for a modified range

of medium work activity.

2. Past Relevant Work

Davis additionally complains that the ALJ erred in finding that she could perform the job of

file clerk as that job is generally performed in the national economy. She reurges her complaints

about the RFC determination, which have already been addressed, but also complains of

inconsistencies within the ALJ’s written decision. 

There is a patent inconsistency in the ALJ’s opinion that requires reversal and remand of the

decision. In considering Davis’s mental impairment, the ALJ determined that Davis retained the

ability to perform the basic mental demands of competitive, remunerative, unskilled work. (Tr. 15).

He further limited Davis to jobs with a reasoning development level of 1, 2 or 3 as defined in the

DOT. (Tr. 15). But later in his opinion, the ALJ considers Davis’s previous work as a file clerk and

concludes that she can perform this light, semiskilled position. (Tr. 18).

The Commissioner does not address this inconsistency, but argues only that the work of a

file clerk requires a reasoning level of 3 and is thus compatible with the ALJ’s RFC assessment.

 

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Reference to the DOT, however, indicates that skill levels and reasoning levels are separate

concepts. See generally Dictionary of Occupational Titles at app. C (rev. 4th ed. 1991). The ALJ’s

determination that Davis can perform her past relevant work is unsupported by substantial evidence

and inconsistent with the ALJ’s own assessment of the work-related impact of Davis’s mental

impairments.

RECOMMENDATION

It is recommended that the decision of the Commissioner be reversed and remanded for

further administrative proceedings consistent with these proposed findings of fact and conclusions

of law. 

NOTICE OF RIGHT TO OBJECT TO PROPOSED

 FINDINGS, CONCLUSIONS AND RECOMMENDATION

 AND CONSEQUENCES OF FAILURE TO OBJECT

Under 28 U.S.C. § 636(b)(1), each party to this action has the right to serve and file specific

written objections in the United States District Court to the United States Magistrate Judge’s

proposed findings, conclusions and recommendation within ten (10) days after the party has been

served with a copy of this document. The court is hereby extending the deadline within which to

file specific written objections to the United States Magistrate Judge’s proposed findings,

conclusions and recommendation until September 2, 2005. The United States District Judge need

only make a de novo determination of those portions of the United States Magistrate Judge’s

proposed findings, conclusions and recommendation to which specific objection is timely made.

See 28 U.S.C. § 636(b)(1). Failure to file by the date stated above a specific written objection to a

proposed factual finding or legal conclusion will bar a party, except upon grounds of plain error or

 

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manifest injustice, from attacking on appeal any such proposed factual findings and legal

conclusions accepted by the United States District Judge. See Douglass v. United Services Auto

Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996)(en banc).

ORDER

Under 28 U.S.C. § 636, it is hereby ORDERED that each party is granted until September

2, 2005 to serve and file written objections to the United States Magistrate Judge’s proposed

findings, conclusions and recommendation. It is further ORDERED that if objections are filed and

the opposing party chooses to file a response, the response shall be filed within seven (7) days of

the filing date of the objections.

It is further ORDERED that the above-styled and numbered action, previously referred to

the United States Magistrate Judge for findings, conclusions and recommendation, be and hereby

is returned to the docket of the United States District Judge.

SIGNED AUGUST 12, 2005.

 /s/ Charles Bleil 

CHARLES BLEIL

UNITED STATES MAGISTRATE JUDGE

 

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