IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

WICHITA FALLS DIVISION

RANDALL J. HAMILTON §

§

Plaintiff, §

§

VS. § NO. 7-05-CV-070-BD

§

JO ANNE B. BARNHART, §

Commissioner of Social Security §

§

Defendant. §

MEMORANDUM OPINION AND ORDER

Plaintiff Randall J. Hamilton seeks judicial review of a final decision of the Commissioner

of Social Security denying his application for disability insurance benefits under Title II of the

Social Security Act, 42 U.S.C. § 401, et seq. For the reasons stated herein, the hearing decision is

reversed.

I.

Plaintiff alleges that he is disabled due to a variety of ailments, including degenerative joint

disease of the right knee, the amputation of two toes on his right foot, low back pain, and fatigue,

weakness, and breathing difficulties related to asbestosis and silicosis. After his application for

disability benefits was denied initially and on reconsideration, plaintiff requested a hearing before

an administrative law judge. That hearing was held on April 13, 2004. At the time of the hearing,

plaintiff was 52 years old. He has a high school equivalency diploma and past work experience as

an oil pumper. Plaintiff has not engaged in substantial gainful activity since August 1, 1998. 

The ALJ found that plaintiff was not disabled and therefore not entitled to disability

insurance benefits. Although the medical evidence established that plaintiff suffered from

 

 Case 7:05-cv-00070-BD Document 29 Filed 10/10/06 Page 1 of 7 PageID 95
degenerative joint disease of the right knee and impairments related to the amputation of two toes

on his right foot, the judge 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 plaintiff

had the residual functional capacity to perform a limited range of light work, but could not return

to his past relevant employment. Relying on the testimony of a vocational expert, the judge found

that plaintiff was capable of working as a small products assembler and an electronics worker -- jobs

that exist in significant numbers in the national economy. Plaintiff appealed this decision to the

Appeals Council. The Council affirmed. Plaintiff then filed this action in federal district court.

II.

In two grounds for relief, plaintiff contends that: (1) the administrative record does not

contain important medical evidence that was considered by the ALJ in making her disability

determination; and (2) the assessment of his residual functional capacity is not supported by

substantial evidence and is inconsistent with applicable legal standards.

A.

Judicial review in social security cases is limited to determining whether the Commissioner's

decision is supported by substantial evidence and whether the proper legal standards were used to

evaluate the evidence. See 42 U.S.C. § 405(g); Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995).

Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept to

support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d

842 (1971); Austin v. Shalala, 994 F.2d 1170, 1174 (5th Cir. 1993). It is more than a scintilla but

less than a preponderance. Richardson, 91 S.Ct. at 1427. The district court may not reweigh the

evidence or substitute its judgment for that of the Commissioner, but must scrutinize the entire

record to ascertain whether substantial evidence supports the hearing decision. Hollis v. Bowen, 837

 

 Case 7:05-cv-00070-BD Document 29 Filed 10/10/06 Page 2 of 7 PageID 96
F.2d 1378, 1383 (5th Cir. 1988).

A disabled worker is entitled to monthly social security benefits if certain conditions are met.

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. Id. § 423(d)(1)(A); Cook v. Heckler,

750 F.2d 391, 393 (5th Cir. 1985). The Commissioner has promulgated a five-step sequential

evaluation process that must be followed in making a disability determination:

1. The hearing officer must first ascertain whether the claimant

is engaged in substantial gainful activity. A claimant who is

working is not disabled regardless of the medical findings.

2. The hearing officer must then determine whether the claimed

impairment is "severe." A "severe impairment" must

significantly limit the claimant's physical or mental ability to

do basic work activities. This determination must be made

solely on the basis of the medical evidence.

3. The hearing officer must then determine if the impairment

meets or equals in severity certain impairments described

in Appendix 1 of the regulations. This determination is

made using only medical evidence.

4. If the claimant has a "severe impairment" covered by the

regulations but is not presumptively disabled, the hearing

officer must determine whether the claimant can perform his

past work despite any limitations.

5. If the claimant does not have the residual functional capacity

to perform past work, the hearing officer must decide whether

the claimant can perform any other gainful and substantial

work in the economy. This determination is made on the

basis of the claimant's age, education, work experience, and

residual functional capacity.

See generally, 20 C.F.R. § 404.1520(b)-(f). The claimant has the initial burden of establishing a

disability in the first four steps of this analysis. Bowen v. Yuckert, 482 U.S. 137, 146 n.5, 107 S.Ct.

2287, 2294 n.5, 96 L.Ed.2d 119 (1987). The burden then shifts to the Commissioner to show that

 

 Case 7:05-cv-00070-BD Document 29 Filed 10/10/06 Page 3 of 7 PageID 97
1

 Plaintiff was examined by Dr. Advincula in connection with a prior application for disability insurance

benefits. That application was denied and plaintiff did not appeal. (See Tr. at 16). 

the claimant is capable of performing work in the national economy. Id. A finding that the claimant

is disabled or not disabled at any point in the five-step review is conclusive and terminates the

analysis. 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. Martinez v. Chater, 64 F.3d 172, 174 (5th Cir. 1995), citing Wren v.

Sullivan, 925 F.2d 123, 126 (5th Cir. 1991). The ALJ has a duty to fully and fairly develop the facts

relating to a claim for disability benefits. Ripley, 67 F.3d at 557. If the ALJ does not satisfy this

duty, the resulting decision is not substantially justified. Id. However, procedural perfection is not

required. The court will reverse an administrative ruling only if the claimant shows that his

substantive rights were prejudiced. Smith v. Chater, 962 F.Supp. 980, 984 (N.D. Tex. 1997).

B.

Plaintiff first contends that his due process rights were violated because the administrative

record does not contain a copy of a consultative examination report prepared by Dr. Edgardo

Advincula in July 2000.1

 In her decision, the ALJ wrote:

The claimant had a consultative physical examination in July 2000.

At that time, the claimant reported pain and a "locking" sensation of

the right knee. He said that he could sit for two to three hours at a

time, could stand for fifteen to twenty minutes, could lift or carry

objects weighing fifteen to twenty pounds if not requiring stooping

or squatting. The claimant reported that he was not able to continue

 

 Case 7:05-cv-00070-BD Document 29 Filed 10/10/06 Page 4 of 7 PageID 98
2

 In a letter to Dr. Advincula dated August 15, 2002, the Commissioner requested all medical records pertaining

to plaintiff dating back to August 1997. Dr. Advincula returned the letter on September 3, 2002, indicating that the

requested information was "not available." (Tr. at 111). Although it is not apparent from the record, the Commissioner

may have obtained Dr. Advincula's consultative examination report from the file in plaintiff's earlier disability case. (See

id. at 16).

his hobby of working on classic cars due to his symptoms. Relevant

negative findings included lungs clear to auscultation, no shortness

of breath, and equal deep tendon reflexes in the lower extremities.

The claimant was noted to have only mild difficulty mounting the

examination table and was not using a cane, crutches, or a walker.

He did show a limp favoring the right side. The claimant was five

feet and ten inches tall and weighed 234 pounds. The right foot

showed an amputation of the second and third toe. The scar was

noted on the right knee with some atrophy. Measurements showed

that the right knee was an [sic] half of an inch smaller than the left.

The examiner noted that the claimant was not able to heel and toe

walk, squat, hop, or tandem walk, but there was no discussion of the

degree of effort. The radiology findings showed severe degenerative

changes of the right knee joint and amputations of the second and

third digits of the right foot with subluxation of the first

interphalangeal joint.

(Tr. at 18-19). Despite this extensive discussion of the medical evidence, the administrative record

contains no report or supporting documentation from Dr. Advincula.2

 The Commissioner concedes

that the record is deficient in this regard, but argues that the missing evidence is irrelevant to

determining whether plaintiff was disabled from August 16, 2000 through December 31, 2001, the

relevant period of disability in this case, and that the omission of such evidence is harmless in any

event.

With respect to the Commissioner's relevancy argument, case law holds that "even if a

doctor's medical observations regarding a claimant's allegations of disability date from earlier,

previously adjudicated periods, the doctor's observations are nevertheless relevant to the claimant's

medical history and should be considered by the ALJ." Hamlin v. Barnhart, 365 F.3d 1208, 1215

(10th Cir. 2004); see also Groves v. Apfel, 148 F.3d 809, 810-11 (7th Cir. 1998) (evidence submitted

in earlier application for benefits is relevant to subsequent disability application when determining

 

 Case 7:05-cv-00070-BD Document 29 Filed 10/10/06 Page 5 of 7 PageID 99
whether claimant is disabled by a progressive condition); Frustaglia v. Sec'y of Health & Human

Services, 829 F.2d 192, 193 (1st Cir. 1987) ("[A]n ALJ is entitled to consider evidence from a prior

denial for the limited purpose of reviewing the preliminary facts or cumulative medical history

necessary to determine whether the claimant was disabled at the time of his second application.").

The ALJ apparently recognized the relevance of Dr. Advincula's medical opinion, as she discussed

it at length in the hearing decision. 

Nor can the court say that the omission of this report from the administrative record is

harmless error. Although there is no per se rule that an incomplete transcript requires reversal and

remand, such a result is appropriate in cases where, as here, the missing evidence precludes

meaningful judicial review. See Bailey v. Heckler, 576 F.Supp. 621, 622-23 (D.D.C. 1984) (where

record is incomplete as to a dispositive factual issue, the deficiency makes it impossible for the court

to determine whether the Commissioner's decision is supported by substantial evidence). As shown

by the ALJ's discussion of the missing report, Dr. Advincula found that plaintiff suffered some

impairment and exertional limitations due to degenerative changes of the right knee joint and the

amputation of two toes on his right foot. (See Tr. at 18-19). Plaintiff argues that, given his age and

lack of transferable skills, he would be presumptively disabled if his knee impairment restricted him

to sedentary work at the end of his insured status. (See Plf. MSJ Br. at 7, citing 20 C.F.R., Pt. 404,

Subpt. P, App. 2, § 201.00). Yet the ALJ found that plaintiff's knee impairment did not preclude him

from performing a limited range of light work. (Tr. at 24). This finding was based, at least in part,

on Dr. Advincula's consultative examination report. Without reviewing the actual report, the court

cannot determine whether the ALJ accurately summarized the medical evidence, thus frustrating

meaningful judicial review. Remand is appropriate under these circumstances. See Bailey, 576

 

 Case 7:05-cv-00070-BD Document 29 Filed 10/10/06 Page 6 of 7 PageID 100
3

 By remanding this case for further administrative proceedings, the court does not suggest that plaintiff is or

should be found disabled.

F.Supp. at 624.3

CONCLUSION

The hearing decision is reversed and this case is remanded to the Commissioner of Social

Security for further proceedings consistent with this opinion.

SO ORDERED.

DATED: October 10, 2006.

 

 

 Case 7:05-cv-00070-BD Document 29 Filed 10/10/06 Page 7 of 7 PageID 101