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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

 §

JAMES MCKENZIE, §

Plaintiff, §

 §

v. § NO. 3:04-CV-2690-M

 §

JO ANNE BARNHART, §

COMMISSIONER OF SOCIAL SECURITY, §

 §

Defendant. §

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Pursuant to 28 U.S.C. §636(b) and the District Court’s Order of Reference dated January

19, 2004, came on to be considered Plaintiff James McKenzie’s action brought under 42 U.S.C.

§405 (g) seeking judicial review of the Defendant’s denial of Plaintiff’s application for benefits

under Title II of the Social Security Act, 42 U.S.C. § 423 and Title XVI of the Social Security

Act 42 U.S.C. § 1381a.

Procedural History: 

On September 12, 2002 McKenzie filed an application for Social Security benefits.

(Administrative Record “Tr.” at 89). He alleged disability due to “lower back pain and neck - 

bulging disc.” (Id. at 93). At the time of the administrative hearing, Plaintiff also claimed to be

disabled because of dizziness, coughing up blood, and loss of feeling in his left hand and leg. 

(Id. at 14).

An Administrative Law Judge (“ALJ”) conducted a hearing on July 26, 2004. (Tr. 329).

On August 19, 2004, the ALJ denied Plaintiff’s request for disability benefits. (Id. at 9). In

pertinent part, the ALJ found that Plaintiff had the severe impairments of cervical spondylosis

 

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and post laminectomy syndrome. (Id. at 17 ¶ 3). The ALJ found that Plaintiff could not

perform his past relevant work, but could perform substantially all of the full range of light

work, and thus found the Plaintiff not disabled at step five. (Id. at 17-18).

McKenzie timely requested review of the ALJ’s decision by the Appeals Council, and on

October 22, 2004 the Appeals Council denied his request. (Tr. at 4). Therefore, the ALJ’s

decision became the Commissioner’s final decision for purposes of judicial review. 

Plaintiff filed his complaint on December 21, 2004 and his brief on May 9, 2005. 

Respondent filed her brief on July 1, 2005

Standard of Review – Social Security: In a Social Security Case, the scope of judicial review is

limited to a determination of whether the ALJ’s decision to deny benefits is (1) supported by

substantial evidence and (2) whether the proper legal standard was applied. E.g., Kinash v.

Callahan, 129 F.3d 736, 738 (5th Cir. 1997).

Substantial evidence means more than a scintilla, but less than preponderance. E.g.,

Haywood v. Sullivan, 888 F.2d 1463, 1466 (5th Cir. 1989). It is defined as relevant evidence

that a reasonable mind would accept as sufficient to support a conclusion. E.g., Greenspan v.

Shalala, 38 F.3d 232, 236 (5th Cir. 1994)(citing Richardson v. Perales, 402 U.S. 389, 401, 91

S.Ct. 1420, 1427 (1971)).

In determining whether substantial evidence exists, the court does not reweigh the

evidence, retry the issues, or substitute its own judgment. E.g., Bowling v. Shalala, 36 F.3d 431,

434 (5th Cir. 1994). The Commissioner’s decision is granted great deference. Leggett v. Chater,

67 F.3d 558, 564 (5th Cir. 1995). Conflicts in evidence are resolved by the Commissioner, not

the courts. Martinez v. Chater, 64 F.3d 172, 174 (5th Cir 1995). Accordingly, the absence of

substantial evidence will be found only when there is a “conspicuous absence of creditable

 

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choices” or “no contrary medical evidence.” Hames v. Heckler, 707 F.2d 162, 164 (5th Cir.

1983). Findings of fact which are supported by substantial evidence are conclusive. Martinez,

64 F.3d at 173.

Discussion: To prevail on a claim for disability benefits, a claimant must establish physical

and/or mental impairment(s) lasting at least twelve months that prevent him from engaging in

any substantial gainful activity. Cook v. Heckler, 750 F.2d 391, 393 (5th Cir. 1985)(citing 42

U.S.C. §§ 416(i)(1), 423 (d)(1)(A)). In determining whether a claimant can engage in substantial

gainful activity, the Commissioner uses a five-step sequential inquiry. E.g., Martinez, 64 F.3d at

173-74. Under the first four steps, a claimant has the burden of proving disability, but under the

fifth step, i.e. when a claimant is unable to perform his previous work, the burden shifts to the

Commissioner to prove that there is other substantial gainful activity which he can perform. E.g.,

Bowen v. Yuckert, 482 U.S. 137, 147 n.5, 107 S.Ct. 2287, 2294 n.5 (1987); Anderson v. Sullivan,

887 F.2d 630, 632-33 (5th Cir. 1989).

As stated above, the ALJ determined that McKenzie was not disabled at step five of the

determination. (See Tr. 18). In his brief Plaintiff contends that the ALJ’s residual functional

capacity (“RFC”) determination was not based on substantial evidence and that the ALJ erred in

failing to call a vocational expert at step five.

The documents contained in the administrative record reflect the following chronology of

events and medical care: 

McKenzie had back surgery in 1997. On or about April 15, 2002 he sustained an on the

job injury. (Tr. 144). In the intervening period he sought medical care for pain and tenderness

in the lumbar spinal region. He did not return to work following the work-related injury. After

filing his application for Social Security benefits, he sustained additional injuries as a result of a

 

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These notes variously refer to the treating doctors as Windsor, Windors, and Winors. However,

it is clear from other entries in the record that it is Dr. David C. Windsor, D.C. who is referred

to in the notes. (See, e.g., Tr. 243).

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motor vehicle accident on October 19, 2003.

The record contains reports from the Erwin Chiropractic Clinic for the period between

January 7, 2002 and January 13, 2003. (Tr. 156-248, Exh. 3F).1

 The records report seventytwo visits to the clinic during this period. The records reflect that McKenzie repeatedly

complained of tenderness in his neck and back. They also document the treatment regimen

which was followed consisting of manual traction, manipulation and electrical stimulation of his

back, and individual and group therapy sessions which ameliorated his condition with varying

degrees of success. The records of the Erwin Clinic do not show that any prescription or nonprescription medicines were ever recommended as part of Plaintiff’s treatment regimen.

On May 23, 2002 Dr. Bobby C. Erwin, D.C. of the Erwin clinic filled out a Texas

Workers’ Compensation Work Status Report which indicated that the Plaintiff had been injured

on April 15, 2002. It further indicated that McKenzie’s injury had previously prevented him

from working and would continue to prevent him from working until at least June 28, 2002. (Tr. 

246). On the page immediately following, there is an identical report, with the dates changed to

indicate inability to return to work from June 28, 2002 to July 28, 2002. (Id. at 247).

On June 10, 2002 the Plaintiff had a MRI of the lumbar spine. The impression by Darrell

Hobson, D.C., D.A.C.B.R., was at L-2 a 5-6mm broad based posterocentral protrusion/herniation

which moderately compressed the ventral surface of the thecal sac and terminal conus

medullaris, with mild to moderate intervertebral osteochondrosis also present. At L-5 - S1 there

was moderate intervertebral osteochondrosis with a broad based 4-5mm posterocentral

protrusion/herniation which mildly compressed the ventral surface of the thecal sac and resulted

 

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“[A] disease especially of children and young animals in which an ossification center especially

in the epiphyses of long bones undergoes degeneration followed by calcification.”

Dictionary.com at http://dictionary.reference.com/search?q=osteochondrosis.

3

“Bent at the end like a hook; unciform.” Dictionary.com at

http://dictionary.reference.com/search?q=Uncinate.

4

“A nontumorous enlargement of an organ or a tissue as a result of an increase in the size rather

than the number of constituent cells.” Dictionary.com at

http://dictionary.reference.com/search?q=hypertrophy.

5

“A constriction or narrowing of a duct or passage.” Dictionary.com at

http://dictionary.reference.com/search?q=stenosis.

5

in bilateral neuroforaminal stenosis. This protrusion as well as bilateral facet joint disease

moderately narrowed the central canal in the A to P dimension. At L4-5 there was mild

intervertebral osteochondrosis with a 3-4mm broad based right paracentral/foraminal

protrusion/herniation which narrowed the right exit neuroforamen, with a mildly narrowed

central canal caused by bilateral facet joint disease and ligamentum flava hypertrophy. At L3-4

there was mild intervertebral osteochondrosis. (Tr. 241-42).

On June 28, 2002 the Plaintiff had a cervical spine MRI done. It was noted that he

reported that he experienced neck pain and occasional hand numbness. The impression by

Darrell Hobson, D.C., D.A.C.B.R., stated that at c3-4 there was mild to moderate intervertebral

osteochondrosis2

 with a 4-5 mm hyperintense posterocentral protrusion/herniation which

migrates superiorly behind the bottom half of the C3 vertebral body. This was associated with

posterior osteophytic ridging, which moderately compressed the right anterolateral spinal cord

and narrows the central spinal canal to 7 mm. Uncinate3 process hypertrophy4 resulted in a

moderate neuroforaminal stenosis.5 At C4-5 there was a mild intervertebral osteochondrosis

associated with a 2-3 mm broad based right paracentral protrusion/herniation with posterior

osteophytic ridging which moderately compressed the right anterolateral aspect of the spinal

 

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“Lordosis is an increased curvature of the normally curved lumbar spine.” MedlinePlus at

http://www.nlm.nih.gov/medlineplus/ency/article/003278.htm.

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cord and narrowed the spinal canal to 8 mm. Uncinate process hypertrophy moderately

narrowed the right exit neuroforamen. At C5-6 there was moderate intervertebral

osteochondrosis with a broad based right paracentral protrusion/herniation associated with

posterior osteophytic “riding[sic]” which severely compressed the right half of the spinal cord

and reduced the right side of the central canal to 4mm.Uncinate process hypertrophy on the right

moderately narrowed the right exit neuroforamen. At C6-7 there was moderate intervertebral

osteochondrosis with a 3-4 mm posterocentral protrusion/herniation with posterior osteophytic

ridging which moderately compressed the ventral spinal cord and narrowed the central spinal

canal to 5 mm. The combination of the protrusion/herniation and uncinate process hypertrophy

moderately narrowed the exit neuroformen bilaterally, although most pronounced on the left

side. Additionally, there was loss of the cervical lordosis.6

 (Tr. 239-40).

On July 29, 2002 Dr. Erwin completed a status report indicating that Plaintiff would be

unable to work from July 28, 2002 to August 28, 2002 and noted that he was scheduled for an

“E.S.I.” and a consultation with Dr. Willis. (Tr.248). Dr. Willis’s evaluation on the same date

noted that McKenzie was on no medications and that he was doing well with his then current

regimen. (Id.).

At the request of the Texas Rehabilitation Commission on August 17, 2002, Marvin Van

Hal, M.D., performed an independent examination and evaluation of Plaintiff. He found the

presence of multilevel cervical spondylosis, exacerbated by a previous work injury; status post

lumbar surgery with discogenic verses neurogenic type pain disorder. He recommended that

Plaintiff follow an excellent “McKenzie exercise” regimen, that he practice excellent back

 

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Any disease of the spinal cord. See Dictionary.com at

http://dictionary.reference.com/search?q=myelopathy.

8

Although Plaintiff describes the entries in the doctor’s notes (Pl.’s Br. at 5), they are, frankly

speaking, illegible.

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mechanics, and that he utilize anti-inflammatories. He opined that Plaintiff could return to work

after three or four weeks of “McKenzie exercises” with minimum overhead lifting. He also

recommended counseling so that Plaintiff could report any myelopathy7 symptoms. (Tr. 144-

47).

On October 31, 2002, Dr. S.W. Casner, M.D. completed an RFC assessment of the

Plaintiff based on his medical records. He opined that McKenzie could occasionally lift 20

pounds, frequently lift 10 pounds, stand and/or walk 6 hours in an 8 hour day, sit 6 hours in an 8

hour day, and had unlimited push/pull ability. He found no postural limitations, manipulative

limitations, visual limitations, communicative limitations, or environmental limitations. He

noted that Plaintiff complained of intermittent lumbar pain that was 3/10, had had lumbar

surgery, and had no neurological deficits. He concurred in the finding that McKenzie could

engage in light exertion. His notes end with the word “credible.” (Tr. 148-55).

McKenzie was seen by Johnny L. Gates, M.D., on three occasions between May 29,

2003 and June 17, 2004. (Tr. 272-76).8

 On October 21, 2003 he presented at the K Clinic,

following his involvement in an automobile accident on October 19, 2003. He was seen by Dr.

Kim M. Israel, M.D. McKenzie complained of pain and decreased range of motion. The doctor

noted a 40% decreased range of motion in his spine and trigger points and that he had decreased

“touch” and “strength” in his upper left extremity. (Id. at 287). On the same day X-rays of his

cervical spine revealed degenerative changes and some straightening of the spine, possibly due

to muscle spasm. (Id. at 286).

 

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“Disease of the spinal nerve roots.” Dictionary.com at

http://dictionary.reference.com/search?q=radiculopathy.

8

On October 28, 2003 McKenzie returned to a doctor at the K Clinic. He reported

decreased pain and decreased range of motion. (Tr. 285).

On November 17, 2003 the Plaintiff saw Dr Israel at the K Clinic. He was scheduled for

an MRI, his prognosis was stated as fair, and he was given a follow-up appointment two weeks

from that date. (Tr. 283). 

Dr. Israel referred him to David Frank, M.D. for a MRI which was performed on

November 20, 2003. Dr. Frank concluded that the Plaintiff had a three millimeter posterior

herniation of the nucleus polposus at the C3-4 level with displacement of the right side of the

spinal cord; a three millimeter posterior herniation of the nucleus polposus at the C4-5 level with

displacement of the right side of the spinal cord; a five millimeter posterior herniation of the

nucleus polposus at the C3-4 level with displacement of the right side of the spinal cord, spinal

stenosis, and narrowing of the right neural foramen; and a three millimeter posterior bulging of

the annulus fibrosis at the C6-7 level with spinal stenosis and narrowing of the neural foramen

bilaterally. (Tr. 281-82).

Following receipt of Dr. Frank’s report Dr. Israel saw McKenzie on December 2, 2003. 

Based on his examination of his MRI, he opined that the Plaintiff had cervical HNP, multiple;

cervical HNP MRE multiple; left extremity radiculopathy;9

 and cervical spine stenosis. 

McKenzie was noted to have 20% decreased range of motion and trigger points, as well as

decreased “DM,” touch, and strength in his left extremity. (Tr. 280).

On December 4, 2003 the Plaintiff reported to the Dallas County Hospital District

Outpatient Department where he was seen by Dr. Kim on December 9, 2003. He reported neck

 

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and lower back pain. He was then currently taking muscle relaxants. McKenzie requested a

disability evaluation. (Tr. 269).

On December 9, 2003 Dr. Israel at the K Clinic wrote a release report on Plaintiff. He

stated that McKenzie had come to his office in connection with injuries sustained in a motor

vehicle accident on October 19, 2003. The Plaintiff continued through care until December 2,

2003 when he stated that he was feeling better. Dr. Israel opined that the Plaintiff would be

unable to work and would have restricted activities of daily living. (Tr. 278-79).

At the request of Dr. Windsor, Green Diagnostic, Inc. conduced EMI Functional Testing

of McKenzie on March 1, 2004. The report stated that his residual functional capacity was

below sedentary, and that he lacked the ability to perform his past relevant work. He

demonstrated “objective clinical signs and symptoms of a dysfunctional cervical and lumbar

spine.” He demonstrated weakness during hand grip testing. He had deficits in range of motion

and difficulty during cardiovascular testing. The tester opined that the Plaintiff could not lift

more than five pounds at a time safely. He had difficulty stooping, crouching, kneeling,

bending, repetitive crouching, walking, climbing, standing, sitting, gripping, repetitive hand

movements, reaching, reaching above the head, pushing, and pulling. The tester reported that

McKenzie cooperated fully in the testing process and demonstrated consistent performance. 

Observation of the Plaintiff during the testing showed discomfort that would make it difficult for

him to perform effectively and comfortably while working. (Tr. 290-300).

On April 10, 2004, the Plaintiff presented at the Parkland emergency department

complaining of neck pain and persistent pain and numbness in his left hand. He denied any

acute injury. A note on the form indicated that he was homeless. (Tr. 268). He was seen again

on April 14, 2004, when he requested medication for his lower back pain. (Id. at 267). On

 

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April 15, 2004, his right hand was x-rayed. No acute fracture or dislocation was seen, although

there was a suspected old radial styloid fracture. (Id. at 263). On the same day he had an x-ray

of his cervical spine. It demonstrated mild multilevel discogenic and facet degenerative changes. 

Vertebral body heights were maintained to the bottom of the C7.(Id. at 264). His then current

medications were muscle relaxants and pain pills. (Id. at 265).

On April 17, 2004 McKenzie was seen at the Parkland emergency department

complaining of pain in his left leg and hand, as well as knee and elbow pain from a fall. (Tr. 

252). An x-ray of his elbow revealed no acute fracture or dislocation. (Id. at 260). An x-ray of

his left knee revealed no fracture or dislocation, as well as a suprapatellar knee effusion. (Id. at

261). An x-ray of his left hand revealed no evidence of fracture or dislocation. (Id. at 262). On

April 19, 2004, the Plaintiff was again seen at the Parkland emergency department, complaining

of lower back pain. A note on his form indicates that it was his fourth visit to Parkland in four

days. Plaintiff denied numbness, tingling, or any neurological deficit. He was told to continue

his Naproxen and Flexril and to return to the emergency department as needed. (Id. at 259).

On May 7, 2004 a note in the Parkland records indicated that Plaintiff had been referred

by a private physician for an X-ray and MRI and that his then-current medications included

ibuprofen, Flexril, Naprosen, and Tramadol. (Tr. 257).

On May 26, 2004 the Plaintiff was seen at the Parkland emergency department for a

prescription refill. It was noted that he had an appointment with the spine clinic on June 19,

2004. It was further noted that he had chronic back and neck pain. (Tr. 256). On June 12, 2004

McKenzie was seen at Parkland for a cut on his right hand. It was noted that he was then

currently taking muscle relaxants. (Id. at 255). On June 26, 2004 the Plaintiff was seen at

emergency department complaining of right heel pain. (Id. at 253). On July 1, 2004 the

 

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Plaintiff was seen at the Parkland emergency department complaining of stiffness in his right

foot and both hands. A note on the hospital form indicated that he was homeless at that time. 

He was given a muscle relaxant and a pain pill and scheduled with the spine clinic for September

4. (Id. at 251).

On July 10, 2004 McKenzie reported to Parkland complaining of lower back pain. (Tr.

250).

On July 26, 2004 the Plaintiff testified on his own behalf at the administrative hearing. 

He testified that he was 44 years old and had a high school education. He had been living at the

Gospel Union Mission, a facility for the homeless, since the previous October. He had suffered

an on the job work accident in 2002 which had compounded those injuries that he had sustained

in 1997. He reported dizziness when standing and walking, coughing up blood, numbness in his

left hand and left leg, an unspecified problem with his right foot, and pain in his neck and lower

back. He stated that he took medication for the pain and numbness and that it alleviated the

symptoms somewhat. He opined that he could not sit for an hour without pain, could lift

approximately 5-10 pounds, and could stand perhaps 10-15 minutes before he became dizzy. 

(Tr. 331-53).

In his first ground for relief, McKenzie contends that the ALJ’s determination of his RFC

was not supported by substantial evidence. The ALJ found that McKenzie retained the

exertional capacity to perform all of the requirements of light work. (Tr. 16 and 17 ¶ 6). This

determination is consistent with the findings of Dr. Van Hal on August 17, 2002 and with those

of Dr. Casner on October 31, 2002. Although the ALJ did not expressly describe the weight

which he gave to Dr. Van Hal’s findings, he expressly concurred in Dr. Casner’s finding that

the Plaintiff could perform light exertion. (Id. at 15). He further found that this finding was not

 

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10The ALJ discredited Plaintiff’s testimony regarding numbness. However this condition was

reported in the medical records as early as June 28, 2002. (Tr. 233; see also 239, 287, and 280).

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inconsistent with the conclusions of treating and consulting physicians. However, one of

McKenzie’s treating doctors, Dr. Israel, noted that upon his release from the K Clinic, he would

be unable to work and have restricted activities.

The only RFC in the record is that performed by Dr. Casner. (Tr. 148-55). In

determining Plaintiff’s disability status the ALJ found that he was able to engage in the full

range of light work on the date of his decision. His reliance on Dr. Casner’s assessment cannot

be sustained because the assessment was made prior to a third physical injury which occurred on

October 19, 2003, almost a year after the assessment was made. It is equally pertinent to note

that Dr. Van Hal observed that McKenzie was at substantial risk for development of problems

with his cervical spine with “rather minor trauma such [as] falls or more so with the aspect of a

motor vehicle accident.” (Id. at 146). The latter is just such an event on which Dr. Israel’s

opinion was based. The magistrate judge agrees with Plaintiff that his treatment at Parkland in

April 2004 for numbness and swelling of his left knee, ankle, and hand is irrelevant to a

determination of disability.10

The ALJ recognized that McKenzie was treated at the K Clinic for injuries in the

automobile accident in October 2003. As noted above he was treated by Dr. Israel. The only

reference to Dr. Israel’s treatment in the decision is the fact that he was released from care on

December 9, 2003. However, the cited language omits the further opinion of the doctor in the

release notes that McKenzie would be unable to work. (Tr. 278). Not only was this observation

omitted from the ALJ’s findings, but the ALJ failed to address the weight and credibility to be

given to Dr. Israel’s findings and opinions as a treating physician. See 20 C.F.R. §

 

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404.1527(d)(2).

The ALJ also rejected the report from Green Diagnostic, Inc. as not being supported by

the objective medical record; choosing to accept the report of Parkland regarding the x-rays

taken on April 17, 2004, which did not relate to all his spinal impairments. Not only is the

Green Diagnostic report consistent with Dr. Israel’s assessments, it is also consistent with Dr. 

Van Hal’s previous observations with respect to Plaintiff’s vulnerability to further severe spinal

injuries. In addition it appears that the Green Diagnostic testing was not only detailed, but also

in accordance with accepted testing protocols.

Therefore, the decision of the Commissioner is not supported by substantial evidence.

RECOMMENDATION:

For the foregoing reasons it is recommended that Plaintiff’s claim be remanded to the

Commissioner for further proceedings.

A copy of this recommendation shall be sent to counsel for both parties.

SIGNED this 26th day of August, 2005

 

 Wm. F. Sanderson Jr.

United States Magistrate Judge

NOTICE

In the event that you wish to object to this recommendation, you are hereby notified that you

must file your written objections within ten (10) days after being served with a copy of this

recommendation. Pursuant to Douglass v. United Servs. Auto Ass’n, 79 F.3d 1415 (5th Cir.

1996)(en banc), a party’s failure to file written objections to these proposed findings of fact and

conclusions of law within such ten (10) day period may bar a de novo determination by the

district judge of any finding of fact and conclusion of law and shall bar such party, except upon

grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and

conclusions of law accepted by the district court. 

 

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