Bullock v. Astrue ( 2007 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 27, 2007
No. 07-30344 Charles R. Fulbruge III
Summary Calendar Clerk
SHEILA D HOLMES BULLOCK,
Plaintiff-Appellant,
v.
MICHAEL ASTRUE, COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Louisiana
2:06-CV-1792
Before HIGGINBOTHAM, STEWART, and OWEN, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Sheila D. Holmes Bullock seeks review of the district
court’s grant of summary judgment to the Commissioner of the Social Security
Administration, affirming the Commissioner’s denial of disability insurance
under Title II of the Social Security Act (“Act”), 42 U.S.C. § 423, as well as the
Commissioner’s denial of supplemental security income under Title XVI of the
Act, 42 U.S.C. § 1382(a)(3). For the following reasons, we AFFIRM the judgment
of the district court.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 07-30344
I. Factual and Procedural History
The record indicates that Bullock has a history of pain in both knees
dating back to October 2002, at which time she was working as a nursing
assistant. On October 25, 2002, she was seen by Dr. Keith Barbagelott, an
orthopedist at Ochsner Clinic, for pain in her left knee and was diagnosed with
early degenerative joint disease and a Baker’s cyst. On January 30, 2003,
Bullock returned to Dr. Barbagelott with reports of pain in her right knee and
was diagnosed with mild degenerative joint disease and an associated Baker
cyst. At that time, the doctor noted that Bullock was involved in patient care,
did a lot of heavy lifting, stood all day, and was slightly overweight. Dr.
Barbagelott indicated that because of these factors there was a lot of stress on
her knees, which interfered with her job. She was given an injection in her right
knee with the recommendation that she take an anti-inflammatory medication.
On August 5, 2003, she was diagnosed by Dr. Barbagelott with
degenerative joint disease of the right knee and a large symptomatic popliteal
cyst. On August 14, 2003, Bullock was seen by Dr. Mark Meyer, an orthopedic
surgeon at Ochsner, for complaints of pain in her right knee and swelling. An
MRI revealed a significant popliteal cyst and degenerative changes in the
posterior horn of the medial meniscus. Dr. Meyer explained to her that Ochsner
did not do surgical excisions in these situations because the recurrence rate was
so high and recommended aspiration and an injection.
On August 25, 2003, Bullock sought a second opinion from Dr. Charles
Johnson based on the severe pain she was experiencing in her right knee. On
September 12, 2003, Dr. Johnson performed arthroscopic surgery on her right
knee with partial medial meniscectomy. Following surgery, Bullock experienced
significant improvement; she had good range of motion in her knee. Thereafter,
Dr. Johnson treated her for a massive effusion on her right knee. Dr. Johnson
drained the fluid from her knee and recommended that she not return to work
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until further notice. Bullock stopped working on January 6, 2004 after the pain
in her knee became worse. She lost her health benefits as a result.
On March 17, 2004, Bullock went to the emergency room at Charity
Hospital with complaints of severe pain in her right knee and she scheduled to
see an orthopedist. The orthopedist found limited range of motion of the knee
and that flexion was painful. Bullock was diagnosed with osteoarthritis and
prescribed a cane to assist with ambulation.
On June 9, 2004, Bullock returned to Dr. Meyer; he conducted x-rays on
her right knee and diagnosed her with moderate to advanced arthritis. After
a subsequent examination on October 11, 2004, Dr. Meyer diagnosed her with
advanced osteoathritis and recommended knee replacement. On April 11, 2005,
Dr. Meyer completed a narrative report, describing her condition as “effectively
‘bone on bone’ in the medial compartment of the right knee.” Further he stated
that he believed that it might be difficult for Bullock to walk one block,
particularly on rough or uneven surfaces, and that she may have difficulty
climbing stairs.
On January 5, 2004, Bullock submitted an application for social security
benefits, reporting that she had become unable to work on September 12, 2003
due to advanced osteoarthritis in her right knee, high cholesterol, high blood
pressure, panic attacks, and sleep disorders. Her application for benefits was
denied. Bullock filed a request for hearing and on March 31, 2005, a hearing
was held before the Administrative Law Judge (“ALJ”). During the hearing the
ALJ indicated that he was not persuaded that Bullock met the requirements to
be considered disabled under the Listing of Impairments; the ALJ determined
that Bullock should be scene by another orthopedist.
On May 24, 2005, Bullock was examined by Dr. Donald Faust, an
orthopedic surgeon, as per the request of the ALJ. Dr. Faust found that Bullock
was active and independent and able to care for herself. She would have
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problems with prolonged walking or standing, but could perform sedentary type
activities.
On November, 21, 2005, the ALJ issued a written opinion denying
Bullock’s application. Thereafter, the Appeals Council denied Bullock’s petition
for review. Bullock appealed to the district court. On January 31, 2007, the
district court issued a ruling adopting the report and recommendation of the
magistrate judge, granting summary judgment to the Commissioner. From that
judgment, Bullock filed a timely appeal to this Court.
II. Discussion
Bullock raises two issues on appeal. First, she claims that the ALJ erred
in finding that she did not have an impairment under the Listing of
Impairments. Second, Bullock contends that the ALJ improperly failed to
consider the medical opinion of her treating physician.
Like the district court, this Court’s review of the Commissioner’s denial of
disability benefits is limited to determining whether: (1) substantial evidence
supports the final decision; and (2) the proper legal standards were used to
evaluate the evidence. Higginbotham v. Barnhart, 405 F.3d 332 (5th Cir. 2005).
Where the Commissioner’s findings are supported by substantial evidence, they
are conclusive and must be affirmed. Newton v. Apfel, 209 F.3d 448, 452 (5th
Cir. 2000). “Substantial evidence is more than a scintilla, less than a
preponderance, and is such that a reasonable mind might accept it as adequate
to support a conclusion.” Randall v. Sullivan, 956 F.2d 105, 109 (5th Cir. 1992).
While we must scrutinize the record to determine the reasonableness of the
decision reached by the ALJ, we must not reweigh the evidence, try the issues
de novo, or substitute our judgment for that of the ALJ’s. Id.In evaluating a claim of disability, the ALJ conducts a five-step sequential
inquiry consisting of the following steps: (1) if a claimant is engaged in
substantial gainful activity, he will not be found disabled regardless of the
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medical findings, 20 C.F.R § 404.1520(b); (2) a claimant who does not have a
“severe impairment” will not be found to be disabled, 20 C.F.R § 404.1520(c); (3)
a claimant who meets the criteria in the list of impairments in Appendix 1 of the
regulations will be considered disabled without consideration of vocational
factors, 20 C.F.R § 404.1520(d); (4) if a claimant can still perform his past work,
he is not disabled, 20 C.F.R § 404.1520(e); and (5) if a claimant's impairment
prevents him from performing his past work, other factors including age,
education, past work experience, and residual functional capacity must be
considered to determine if other work can be performed, 20 C.F.R § 404.1520(f).
Bullock asserts that the ALJ erred at step three of the five-step process by
failing to explain why her impairment did not meet listing 1.02(A) under the
Listing of Impairments. Bullock cites no binding authority for the contention
that the ALJ is required to articulate the reasons supporting his finding under
step three. Thus, the sole question before this court is whether substantial
evidence supports the ALJ’s finding that Bullock did not have an impairment
under Appendix 1 of the regulations. See Selders v. Sullivan, 914 F.2d 614 (5th
Cir. 1990) (determining whether substantial evidence supported the ALJ’s
finding, though Appellant argued that ALJ erred in failing to explain why
Appellant did not meet step three requirements).
Bullock argues that she presented evidence at the administrative level
which established that her impairment met the requirements for Listing 1.02(A)
of the Listing of Impairments. The listing provides as follows:
1 .02 Major dysfunction of a joint(s) (due to any cause):
Characterized by gross anatomical deformity
(e.g., subluxation, contracture, bony or fibrous
ankylosis, instability) and chronic joint pain and
stiffness with signs of limitation of motion or
other abnormal motion of the affected joint(s),
and findings on appropriate medically acceptable
imaging of joint space narrowing, bony
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destruction, or ankylosis of the affected joint(s).
With:
A. Involvement of one major peripheral
weight-bearing joint (i.e., hip, knee, or ankle),
resulting in inability to ambulate effectively, as
defined in 1 .OOB2b;
20 C.F.R. pt. 404, Subt. P, app. 1 , Listing 1 .02. According to the regulation, the
following are examples of ineffective ambulation:
[T]he inability to walk without the use of a walker, two
crutches or two canes, the inability to walk a block at
a reasonable pace on rough or uneven surfaces, the
inability to use standard public transportation, the
inability to carry out routine ambulatory activities,
such as shopping and banking, and the inability to
climb a few steps at a reasonable pace with the use of
a single hand rail.
20 C.F .R. pt . 404, Subt . P, app . 1, § 1 .00(B)(2)(b). In order for Bullock to show
that her impairment matches this listing, she must meet all of the specified
medical criteria. Sullivan v. Zebley 493 U.S. 521, 530 (1990) (“An impairment
that manifests only some of those criteria, no matter how severely, does not
qualify.”).
While it is clear that she suffers from severe pain in her right knee, in
light of the deferential standard of review applicable in this case as well as our
review of the record, we hold that there is substantial evidence to support the
ALJ’s finding that Bullock did not meet the requirements of Listing 1.02(A).
Most notably, Bullock has never been diagnosed with subluxation, contracture,
bony or fibrous ankylosis or instability as required by 1.02(A). Further, even if
Bullock met the requirements of 1.02(A), Bullock would also have to show that
she is unable to ambulate effectively as described in Listing 1.00(B)(2)(b), which
is also not supported by the record. The record indicates that Bullock is able to
walk with the help of a single cane, not a walker, two crutches or two canes.
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Bullock has indicated that she is able to climb stairs with the use of a handrail
and at her last documented visit to a physician, Dr. Faust, she indicated that she
able to walk two blocks at a time. Therefore, we conclude that the decision
denying benefits to Bullock was supported by substantial evidence in the record,
such that a reasonable mind might accept as adequate to support the conclusion
reached in this case. See Randall, 956 F.2d at 109.
As a second point of error, Bullock contends that under this Court’s
precedent in Newton, the ALJ was required to discuss the factors set forth in 20
C.F.R. § 404.1527(d)(2) before discounting the opinion of her treating physician,
Dr. Meyer. However, the court in Newton also states that consideration of the
20. C.F.R. § 404.1527(d)(2) factors is only necessary where there is no “reliable
medical evidence from a treating or examining physician controverting the
claimant’s treating physician.” 209 F.3d at 453. Here, the ALJ was presented
with the patient’s medical history, as well as opinions from Dr. Meyer, the
patient’s treating physician, and Dr. Faust, the state medical examiner who
examined Bullock. After reviewing the opinions of both doctors, the ALJ
determined Dr. Faust’s opinion to be more credible in light of the entire record.
Because Faust was an examining physician, under Newton it was unnecessary
for the ALJ to discuss the 20. C.F.R. § 404.1527(d)(2) factors in choosing to afford
more weight to his opinion, rather than the opinion of Dr. Meyer. See id; See
also Beasley v. Barnhart, 191 Fed. Appx. 331, 336 (5th Cir. 2006) (finding that
because the consulting physician did not examine the claimant, the ALJ could
not reject the opinion of claimant’s treating physician without an analysis of the
treating physician views under 20. C.F.R. § 404.1527(d)(2)).
III. Conclusion
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
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