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

BRENDA D. WHITEFIELD, §

PLAINTIFF, §

§

VS. § CIVIL ACTION NO. 4:06-CV-007-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 Brenda D. Whitefield 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 that awards her a closed period of disability insurance benefits

under Title II of the Social Security Act. Whitefield applied for disability benefits on November 24,

1999, alleging disability beginning May 23, 1996. (Tr. 78). She last met the insured status

requirements on December 31, 2002. (Tr. 75).

After the Social Security Administration denied Whitefield’s application for benefits both

 

 Case 4:06-cv-00007-Y Document 23 Filed 11/28/06 Page 1 of 17 PageID 91
Findings, Conclusions and Recommendation of

the United States Magistrate Judge–Page 2

initially and on reconsideration, Whitefield requested a hearing before an administrative law judge

(the "ALJ"). ALJ James Wendland held a hearing in May 2002, and on August 21, 2002, entered

a partially favorable decision awarding Whitefield a closed period of benefits commencing May 5,

1997 and ending April 29, 2001. (Tr. 246). On April 5, 2004, the Appeals Council vacated that

decision (including the favorable portions) and remanded the case for further development of the

record. (Tr. 265). 

ALJ Wendland held a supplemental hearing on September 10, 2004, which was attended by

Whitefield, her attorney, a medical expert, and a vocational expert. (Tr. 335). On November 4,

2004, the ALJ issued another partially favorable decision awarding Whitefield a closed period of

benefits from April 25, 2000 through June 18, 2001. (Tr. 16-31). The Appeals Council denied

Whitefield’s request for review of her case, leaving the ALJ’s decision to stand as the final decision

of the Commissioner. (Tr. 5).

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. §

 

 Case 4:06-cv-00007-Y Document 23 Filed 11/28/06 Page 2 of 17 PageID 92
Findings, Conclusions and Recommendation of

the United States Magistrate Judge–Page 3

404.1520(c). At the third step, disability will be found if the 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 the 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.

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

 

 Case 4:06-cv-00007-Y Document 23 Filed 11/28/06 Page 3 of 17 PageID 93
Findings, Conclusions and Recommendation of

the United States Magistrate Judge–Page 4

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.

C. ISSUES

1. Whether the ALJ’s determination that Whitefield did not meet or equal a listing

between May 1996 and December 2002 is supported by substantial evidence;

2. Whether the ALJ’s residual functional capacity assessment is supported by

substantial evidence; and

3. Whether the Commissioner met her burden to establish medical improvement

warranting the cessation or termination of benefits.

D. ADMINISTRATIVE RECORD

1. Medical History

Whitefield saw her primary care physician, Dwayne Shafer, M.D., in 1996 for complaints

of back pain. Shafer referred Whitefield to neurologist Richard Hubbard, M.D., for evaluation on

May 7, 1996. (Tr. 136). On examination, Whitefield exhibited a normal gait with no muscle

tenderness and no sacroiliac joint tenderness. A motor examination was intact and straight leg

raising was normal bilaterally. (Tr. 136-37). Magnetic resonance imaging (an MRI) showed mild

L5-S1 disk herniation without compression of the nerve roots. There was moderate facet arthritis

 

 Case 4:06-cv-00007-Y Document 23 Filed 11/28/06 Page 4 of 17 PageID 94
1

 Spondylolisthesis is the forward displacement of one vertebra over another. DORLAND’S ILLUSTRATED

MEDICAL DICTIONARY 1563 (28th ed. 1994). 

Findings, Conclusions and Recommendation of

the United States Magistrate Judge–Page 5

at L4 that Hubbard opined might be causing Whitefield’s back pain. (Tr. 137). Eletromyography

(EMG) and nerve conduction studies were normal. Hubbard recommended a conservative treatment

regimen.

Shafer subsequently referred Whitefield to surgeon Joe Wheeler, M.D. Wheeler evaluated

Whitefield in December 1996 and ordered a myelogram and computerized axial tomography (CAT)

scan. (Tr. 152-53). The diagnostic studies were performed January 6, 1997 and showed a central

disc lesion at L5-S1 that indented the thecal sac without deforming the nerve sleeves, and

spondylolisthesis1

 at L4-L5. (Tr. 144-51). Whitefield underwent a surgical decompression and

spinal fusion at L4-L5 and L5-S1 in May 1997. (Tr. 162-65). On July 21, 1997, Wheeler noted

post-surgical improvement in Whitefield’s condition. (Tr. 141). An assessment in October 1997

showed good bone formation along the fusion, and Whitefield was released to work on a part-time

basis. (Tr. 156). During a check-up on December 18, 1997, Whitefield reported working some and

sleeping well. She was taking no medications. A neurological evaluation was intact and she was

referred for postoperative rehabilitation services. (Tr. 155).

Whitefield was seen by William Mitchell, M.D., on April 25, 2000 for complaints of

progressively worsening back pain that radiated into her legs. (Tr. 185). After reviewing new MRI

results, Mitchell opined that additional back surgery would probably be necessary due to

pseudoarthrosis or non-union of the previous surgical site. (Tr. 210). On December 8, 2000,

Whitefield had a repeat decompression procedure and fusion at L3-L4, L4-L5, and L5-S1. (Tr. 205).

 

 Case 4:06-cv-00007-Y Document 23 Filed 11/28/06 Page 5 of 17 PageID 95
Findings, Conclusions and Recommendation of

the United States Magistrate Judge–Page 6

At her follow-up visits, Whitefield reported feeling better, but still had some back and leg

pain. In April 2001, Mitchell found Whitefield was doing well. Straight leg raising was negative,

Whitefield reported less pain, and x-rays showed good progress and consolidation of the spinal

fusion. (Tr. 204). On June 18, 2001, Whitefield told Mitchell that she had mild discomfort, but in

general, she felt better than she had before the surgery. Mitchell prescribed a physical therapy

program and Whitefield was scheduled for a follow-up appointment in six months. (Tr. 204). On

December 17, 2001, Whitefield reported moderate back and leg discomfort. She continued to take

her pain medication once a day, but felt much better than she had before the surgery. X-rays showed

good fusion from L4 to the sacrum, and straight leg raising was negative. Mitchell told her to use

her pain medication as needed and also ordered epidural steroid injections. (Tr. 204).

Shafer completed a medical source statement dated October 2, 2002. (Tr. 21). He opined

that Whitefield could sit, stand, or walk for less than two hours during the workday; lift less than ten

pounds; and needed to lie down at unpredictable intervals during the day. (Tr. 325-27). The ALJ

found that Shafer’s report was not corroborated by contemporaneous treatment records and observed

that Shafer had last seen Whitefield in January 2000. (Tr. 21). The ALJ also noted that the opinions

Shafer expressed on the form were incompatible with Shafer’s reported finding on the date he last

examined Whitefield. (Tr. 21).

In addition to her complaints of back pain, Whitefield has sought treatment for benign

tremors in her extremities. She was prescribed propanolol for the tremors, and a prescription for

myosoline was later added to her treatment regimen. The medication initially provided good results,

but the tremors eventually returned. (Tr. 177, 201).

 

 Case 4:06-cv-00007-Y Document 23 Filed 11/28/06 Page 6 of 17 PageID 96
Findings, Conclusions and Recommendation of

the United States Magistrate Judge–Page 7

Medical expert Otto Wilbanks testified during the first administrative hearing held May 28,

2002. Wilbanks opined that Whitefield had two primary medical impairments: her back impairment

and an essential tremor. (Supp. Tr. 409). He opined that Whitefield’s condition did not meet the

criteria of any listed impairment, but he testified that her back condition probably equaled a listing

from May 5, 1997 until April 29, 2001 when a normal neurological evaluation was reported. (Supp.

Tr. 410-11). Wilbanks testified that Whitefield was limited to light work activity after April 29,

2001. (Supp. Tr. 411). 

Whitefield attended a consultative evaluation with neurologist Edwin Green, M.D., on June

25, 2004. (Tr. 308). On examination, Whitefield’s muscle strength was assessed as 5/5. She

exhibited normal heel-toe and tandem gait, and her sensory examination was also normal. Her

reflexes were 2+ bilaterally. (Tr. 309). Green concluded that Whitefield’s condition was not

disabling, although she was unable to perform occupations where manipulation of small objects was

essential. Green recognized that Whitefield’s back pain was an issue, and he recommended an MRI

to evaluate that problem. (Tr. 309). Green also completed an assessment form on which he

indicated that Whitefield was able to perform a limited range of sedentary work. (Tr. 311). Green,

however, completed a second assessment form on July 30, 2004, and on this form, he indicated that

Whitefield’s ability to sit, stand or walk was limited to less than two hours during an eight-hour

workday. (Tr. 328).

At the supplemental administrative hearing in 2004, medical expert Charles Murphy testified

that Whitefield suffered from a degenerative condition along her lumbar spine. (Tr. 355). He noted

that Whitefield underwent her first surgery in May 1997, was released to work on a part-time basis

 

 Case 4:06-cv-00007-Y Document 23 Filed 11/28/06 Page 7 of 17 PageID 97
Findings, Conclusions and Recommendation of

the United States Magistrate Judge–Page 8

in October 1997, and she had an intact neurological assessment in December 1997. (Tr. 356). The

medical records picked up again in April 2000 when she was seen for renewed complaints of back

pain. Her second back surgery in December 2000 apparently resulted in a solid fusion. Whitefield’s

additional problems included obesity and a tremor. (Tr. 356). Murphy testified that Whitefield’s

impairments did not meet or equal any listing, but he would expect that she had functional

limitations as a result of her impairments. (Tr. 356-57).

Murphy opined that there would be a recovery period after her May 1997 surgery that would

have rendered Whitefield unable to work until December 1997. (Tr. 357). Murphy also testified

that, from December 1997 to April 2000, Whitefield would have been limited to sedentary work

with a sit/stand option; no climbing or crawling; occasional postural changes and occasional pushing

or pulling; no vibration and no handling of sharp objects. From April 2000 to June 2001, Murphy

would again find Whitefield reduced to a less than sedentary level of work, but from June 2001

forward, Whitefield could be expected to return to the same level of sedentary work with the same

restrictions that Murphy had previously listed. (Tr. 358).

2. ALJ Decision

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

alleged onset date of May 23, 1996. He also found that the medical evidence established that

Whitefield had severe degenerative disk disease, osteoarthritis, obesity, and an essential tremor;

however, the ALJ found that Whitefield had no impairment or combination of impairments meeting

or equaling any listed impairment. (Tr. 17). The ALJ also acknowledged a deterioration in

Whitefield’s condition from May 1997 to December 1997 and again from April 2000 to June 2001;

 

 Case 4:06-cv-00007-Y Document 23 Filed 11/28/06 Page 8 of 17 PageID 98
Findings, Conclusions and Recommendation of

the United States Magistrate Judge–Page 9

however, the May 1997 to December 1997 period did not qualify for disability insurance benefits

because it failed to meet the 12-month durational requirement. (Tr. 26). 

The ALJ found that Whitefield retained the residual functional capacity from May 23, 1996

to April 25, 2000 for sedentary work activity that was limited to occasional stooping, balancing,

crouching or kneeling; no crawling or climbing; sitting for no more than thirty minutes at a time

without the opportunity to stand; no more than occasional performance of extended, repetitious

reaching with the upper extremities; no pushing or pulling with the feet; no more than frequent

handling or fingering of objects; no working at unguarded heights or around hazardous mechanical

equipment; pushing or pulling no more than ten pounds with the upper extremities; no working with

sharp objects; and no working with vibrating equipment. (Tr. 26). The ALJ further found that from

June 18, 2001 through her date last insured, Whitefield experienced medical improvement and

regained the residual functional capacity for sedentary work with the same foregoing restrictions.

(Tr. 28). When these limitations were presented in the form of a hypothetical to vocational expert

Carol Bennett, Bennett testified that there were jobs that would accommodate those limitations.

Examples included receptionists (with approximately 33,000 jobs in the national economy);

appointment clerk (with approximately 180,000 jobs in the national economy); and check cashier

(with approximately 600,000 jobs in the national economy). (Tr. 29, 368). 

Accepting the vocational expert’s testimony, the ALJ found that work existed in significant

numbers that Whitefield could have performed between May 23, 1996 and April 25, 2000, and again

between June 18, 2001 and December 31, 2002 despite her impairments. (Tr. 30). The ALJ

concluded that Whitefield was under a disability for a closed period between April 25, 2000 and

 

 Case 4:06-cv-00007-Y Document 23 Filed 11/28/06 Page 9 of 17 PageID 99
2

 Listing 1.04 addresses the criteria for presumptively disabling spinal disorders:

1.04 Disorders of the spine (e.g., herniated nucleus pulposus, spinal arachnoiditis, spinal stenosis,

osteoarthritis, degenerative disc disease, facet arthritis, vertebral fracture), resulting in compromise

of a nerve root (including the cauda equina) or the spinal cord. With:

A. Evidence of nerve root compression characterized by neuro-anatomic distribution of pain,

limitation of motion of the spine, motor loss (atrophy with associated muscle weakness or muscle

weakness) accompanied by sensory or reflex loss and, if there is involvement of the lower back,

positive straight-leg raising test (sitting and supine);

20 C.F.R. Part 404, Subpart P, app. 1, § 1.04A.

3

 Although recognizing that the ALJ’s decision was based on medical expert testimony of equivalency, the

Appeals Council nonetheless found that

the record does not document subsequent treatment for back pain from December 1997 until April

2000. The Appeals Council concludes that further evaluation of the nature and severity of the

claimant’s back impairment is necessary, in light of the normal neurological examinations, the

evidence of work activity and the lack of treatment for much of the period during which the

claimant was found to have impairments of listing level severity. 

Findings, Conclusions and Recommendation of

the United States Magistrate Judge–Page 10

June 18, 2001 and was entitled to disability insurance benefits for that period only. (Tr. 30-31). 

E. DISCUSSION

1. Medical Equivalence

Whitefield contends that the ALJ’s determination that she was disabled and entitled to

disability insurance benefits only for a closed period from April 25, 2000 to June 18, 2001 is not

supported by substantial evidence. More specifically, Whitefield contends that the ALJ’s

determination is contrary to the testimony that medical expert Wilbanks provided during the first

administrative hearing in 2002. Wilbanks had opined that Whitefield’s back condition did not meet,

but did medically equal the severity of listing 1.04A2

 from May 5, 1997 through April 29, 2001. The

ALJ accepted this testimony in his first administrative decision, but the Appeals Council vacated

that decision and remanded the claim for further development.3 In his second decision, the ALJ

 

 Case 4:06-cv-00007-Y Document 23 Filed 11/28/06 Page 10 of 17 PageID 100
(Tr. 266). The Appeals Council instructed the ALJ to reevaluate Whitefield’s impairments and her maximum RFC

for the entire period under consideration. (Tr. 266). 

Findings, Conclusions and Recommendation of

the United States Magistrate Judge–Page 11

found that Whitefield had no impairment meeting or equaling a listed impairment at any time before

her insured status expired, although he did find Whitefield had been restricted to a less than

sedentary range of work activity for several months in 1997 and again from April 25, 2000 to June

18, 2001. The ALJ did not refer to Wilbanks’ testimony in arriving at this decision, but instead

relied on the testimony that medical expert Murphy gave during the supplemental administrative

hearing.

Whitefield contends that the ALJ was obligated to weigh Wilbanks’s opinion in accordance

with the administrative rulings and regulations, and further complains that the ALJ should have

reconciled the conflict between Wilbanks’ and Murphy’s opinions. See generally 20 C.F.R. §

404.1527. The Commissioner asserts that the ALJ had no obligation to consider Wilbanks’

testimony because the Appeals Council had vacated the previous decision and remanded the case

for further development. The Commissioner also notes that conflicts in the evidence, including the

medical evidence, are to be resolved by the ALJ, not the court. See Carry v. Heckler, 750 F.2d 479,

483 (5th Cir. 1985). 

The court can find no authority that suggests that the Appeals Council’s action in vacating

the previous ALJ decision somehow nullified Wilbanks’ medical source opinion, and nothing in the

Appeals Council’s written order suggests that Wilbanks’ opinion was not to be considered on

remand. To the contrary, the applicable regulations require the Commissioner to consider every

medical opinion received, regardless of its source. 20 C.F.R. § 404.1527(d). The regulations also

 

 Case 4:06-cv-00007-Y Document 23 Filed 11/28/06 Page 11 of 17 PageID 101
4

 Remand in this case is appropriate so that the ALJ can consider all of the medical source opinions in the

record that relate to Whitefield’s disability status before April 25, 2000. Depending on the outcome of her review of

the relevant medical source opinions, the Commissioner may find it necessary to revisit the issue of Whitefield’s

RFC before April 25, 2000.

Findings, Conclusions and Recommendation of

the United States Magistrate Judge–Page 12

provide that the Commissioner will consider medical source opinions that address whether an

impairment meets or equals a listed impairment, although the Commissioner is responsible for

deciding the ultimate legal question of whether a listing is met or equaled. 20 C.F.R. § 404.1526(e);

Social Security Ruling 96-6p. The ALJ made no reference to Wilbanks’ previous opinions and did

not indicate that he had compared or reconciled the conflicting testimony of the two medical experts,

which impedes the court’s ability to review the basis for the Commissioner’s decision.

Although the Commissioner now asserts that substantial evidence supports the ALJ’s

determination that Whitefield did not meet or equal the Listing for spinal disorders, the court

declines to engage in post hoc reasoning to excuse the ALJ from the task of considering all medical

source opinions in the record. The case should be reversed and remanded so that the Commissioner

may consider all of the evidence relevant to Whitefield’s disability status from May 5, 1997 to April

25, 2000.

2. Residual Functional Capacity4

Whitefield asserts that substantial evidence does not support the ALJ’s assessment of her

residual functional capacity (RFC) for a modified range of sedentary work because this assessment

is contradicted by the medical source statement that Green issued on July 30, 2004 in which he

opined that Whitefield was unable to sit, stand, and/or walk for a full eight hours during the

workday. The ALJ reviewed Green’s consultative evaluation, which revealed few positive findings,

 

 Case 4:06-cv-00007-Y Document 23 Filed 11/28/06 Page 12 of 17 PageID 102
5

 The court notes that the issue of medical improvement is not affected by the ALJ’s failure to weigh the

opinions of medical expert Wilbanks because Wilbanks testified that Whitefield’s impairments equaled the severity

of a presumptively disabling listed impairment only through April 29, 2001, and he opined that thereafter she

Findings, Conclusions and Recommendation of

the United States Magistrate Judge–Page 13

and Green’s initial opinion that Whitefield was capable of sedentary work activities if she was able

to alternate between sitting and standing and performed reaching activities no more than frequently.

(TR. 22). The ALJ also reviewed Green’s second statement, but attributed that statement to

Whitefield’s treating neurologist. The ALJ found that this second medical source statement and the

functional limitations identified therein were not corroborated by treatment records before December

31, 2002 when Whitefield’s insured status expired, and accordingly, declined to afford controlling

weight to that opinion. (Tr. 22-23). 

Whitefield asserts that the ALJ did not give adequate consideration to the medical source

statement because he misunderstood the source of the opinion. Whitefield, however, cannot

establish prejudice as a result of the ALJ’s misunderstanding. As the Commissioner points out, the

ALJ thought the opinion was from a treating source. Treating source opinions are generally entitled

to more weight under the regulations than opinions from other medical sources. See 20 C.F.R. §

404.1527(d)(2). At most, the ALJ gave the medical source statement more consideration than it

would otherwise deserve. Moreover, Whitefield has not demonstrated that the explanation that the

ALJ gave for rejecting the opinion, i.e., a lack of supporting treatment records from the relevant time

period, is not equally accurate or applicable if the ALJ had correctly identified Green as the author.

3. Medical Improvement

Whitefield also contends that the administrative record does not support a finding of medical

improvement in her condition as it relates to her ability to work after June 18, 2001.5

 Congress has

 

 Case 4:06-cv-00007-Y Document 23 Filed 11/28/06 Page 13 of 17 PageID 103
regained the ability to perform light work activity. (Supp. Tr. 411).

6

 Basic work activities are the abilities and aptitudes necessary to do most jobs. Basic exertional work

activities include walking, standing, pushing, pulling, reaching and carrying. 20 C.F.R. § 404.1594(b)(4). 

Findings, Conclusions and Recommendation of

the United States Magistrate Judge–Page 14

established specific standards for the termination of disability benefits. As relevant here,

termination requires substantial evidence demonstrating (1) medical improvement related to the

individual’s ability to work, and (2) the individual is now able to engage in substantial gainful

activity. 42 U.S.C. §§ 423(f)(1), 1382c(a)(4)(A). Medical improvement is any decrease in the

medical severity of impairments present at the time of the most recent favorable medical decision

that the claimant was disabled or continued to be disabled. 20 C.F.R. § 404.1594(b)(1). A

determination that there has been a decrease in medical severity must be based on improvement in

the symptoms, signs or laboratory findings associated with the relevant impairments. 20 C.F.R. §

404.1594(b)(1). Medical improvement is related to the ability to work if there has been a decrease

in the severity of the impairments present at the time of the most recent favorable medical decision

and an increase in the claimant’s functional capacity to do basic work activities.6

 20 C.F.R. §

404.1594(b)(3). 

To execute Congress’s intent, the Commissioner has implemented an eight-step process for

evaluating a possible termination of benefits: 

1. Is the claimant engaged in substantial gainful activity?

2. If not, does the claimant have an impairment or combination of impairments that

meets or equals the severity of an impairment listed in Appendix 1 of the regulations:

3. If not, has there been medical improvement?

4. If there has been medical improvement, is it related to the claimant’s ability to do

work?

 

 Case 4:06-cv-00007-Y Document 23 Filed 11/28/06 Page 14 of 17 PageID 104
Findings, Conclusions and Recommendation of

the United States Magistrate Judge–Page 15

5. If there has been no medical improvement or the medical improvement is not related

to the claimant’s ability to do work, is an exception applicable?

6. If there has been medical improvement related to the claimant’s ability to do work

(or one of the first group of exceptions to medical improvement applies), are the

claimant’s current impairments severe?

7. If so, is the claimant able to engage in past relevant work?

8. If not, is the claimant able to perform other substantial gainful activity?

20 C.F.R. § 404.1594(f); Griego v. Sullivan, 940 F.2d 942, 944 n.1 (5th Cir. 1991). The burden of

proof is on the Commissioner to demonstrate that a cessation or termination of benefits is

appropriate. Waters v. Barnhart, 276 F.3d 716, 718 (5th Cir. 2002); Griego, 940 F.2d at 944. 

Whitefield asserts that the Commissioner has failed to meet her burden to demonstrate

medical improvement for purposes of terminating Whitefield’s disability benefits effective June 18,

2001. (Tr. 28). The ALJ expressly found medical improvement in Whitefield’s condition, but

Whitefield contends that the ALJ did so by disregarding Green’s opinion that Whitefield remained

unable to perform the basic work activities of sitting, standing, and walking. The ALJ considered

Green’s opinion, although he attributed it to a treating source instead of the consultative examiner,

and decided it was not supported by Whitefield’s treatment history. The ALJ also relied on the

medical expert’s testimony that Whitefield had regained the ability to perform a modified range of

sedentary work by June 2001. (Tr. 28). That determination is likewise supported by Whitefield’s

treatment records that reflect the success of her second surgery with relatively minimal findings

during her follow-up visits with treating sources. The Commissioner met her burden to establish

that cessation of Whitefield’s benefits after June 18, 2001 was appropriate.

 

 Case 4:06-cv-00007-Y Document 23 Filed 11/28/06 Page 15 of 17 PageID 105
Findings, Conclusions and Recommendation of

the United States Magistrate Judge–Page 16

RECOMMENDATION

It is recommended that the decision of the Commissioner with respect to Whitefield’s

disability status between May 5, 1997 and April 25, 2000 be reversed and remanded for further

administrative proceedings consistent with these proposed findings and conclusions. The

Commissioner’s decision should otherwise be affirmed. 

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 December 18, 2006. 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

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

 

 Case 4:06-cv-00007-Y Document 23 Filed 11/28/06 Page 16 of 17 PageID 106
Findings, Conclusions and Recommendation of

the United States Magistrate Judge–Page 17

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

18, 2006 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 NOVEMBER 28, 2006.

/s/ Charles Bleil

________________________________

CHARLES BLEIL

UNITED STATES MAGISTRATE JUDGE

 

 Case 4:06-cv-00007-Y Document 23 Filed 11/28/06 Page 17 of 17 PageID 107