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Re: Louis Earl Bruette v. Commissioner

May 17, 2013


The opinion of the court was delivered by: Stephanie A. Gallagher United States Magistrate Judge



Dear Counsel:

On July 2, 2012, the Plaintiff, Louis Earl Bruette, petitioned this Court to review the Social Security Administration's final decision to deny his claims for Disability Insurance Benefits and Supplemental Security Income. (ECF No. 1). I have considered the parties' cross-motions for summary judgment, and Mr. Bruette's response. (ECF Nos. 14, 15, 18). I find that no hearing is necessary. Local Rule 105.6 (D. Md. 2011). This Court must uphold the decision of the agency if it is supported by substantial evidence and if the agency employed proper legal standards. 42 U.S.C. §§ 405(g), 1383(c)(3); see Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996) (superseded by statute on other grounds). Under that standard, I will grant the Commissioner's motion and deny Plaintiff's motion. This letter explains my rationale.

Mr. Bruette filed his claims for benefits on August 23, 2006, alleging a disability onset date of July 1, 2004. (Tr. 87-94). His claims were denied initially on November 28, 2006, and on reconsideration on January 22, 2007. (Tr. 64-67, 69-70). A hearing was held on June 8, 2007 before an Administrative Law Judge ("ALJ"). (Tr. 11-48). On April 25, 2008, the ALJ determined that Mr. Bruette was not disabled during the relevant time frame. (Tr. 443). The Appeals Council ("AC") denied a request for review. (Tr. 1-8). On January 13, 2011, the case was remanded by consent by the United States District Court. (Tr. 531-33). An additional hearing was held on September 21, 2011. (Tr. 484-530). Following the hearing, on December 21, 2011, the ALJ again determined that Mr. Bruette was not disabled. (Tr. 443-62). The AC denied Mr. Bruette's request for review, (Tr. 422-25), so the ALJ's December, 2011 decision constitutes the final, reviewable decision of the agency.

The ALJ found that Mr. Bruette suffered from the severe impairments of: disorders of the back, status post left knee surgeries, hypertension, and obesity. (Tr. 445). Despite these impairments, the ALJ determined that Mr. Bruette retained the residual functional capacity ("RFC") to: perform sedentary work as defined in 20 CFR 416.967(a) except he can only occasionally climb and stoop and needs to stand for a few minutes every hour.

(Tr. 449). After considering the testimony of a vocational expert ("VE"), the ALJ determined that Mr. Bruette could perform jobs that exist in significant numbers in the national economy, and that he was therefore not disabled during the relevant time frame. (Tr. 461-62).

Mr. Bruette presents two arguments on appeal: (1) that the ALJ failed to properly analyze whether he met or equaled Listing 1.04, and (2) that the ALJ erred by giving lesser weight to his treating physicians' opinions. Each argument lacks merit.

Mr. Bruette's first primary argument has a number of subparts. First, he argues the ALJ summarily concluded that Mr. Bruette did not meet a Listing, without offering support from the record. Pl. Mot. 24-26. I disagree. Despite the general nature of the ALJ's language describing his evaluation of the Listings, I find that the ALJ provided substantial evidence to support his step three findings. The ALJ first noted that the state agency physicians had concluded that Mr. Bruette's impairments did not meet or equal any Listing. (Tr. 449). Second, the ALJ noted that the records submitted after the state agency review did not warrant a different determination. Id. The ALJ specifically found that there was no evidence to support a finding that Mr. Bruette could not ambulate "without the use of a hand-held assistive device[] that limits the functioning of both upper extremities." Id. Mr. Bruette's argument is that Listing 1.04C applies. However, without an inability to ambulate, that cannot be the case. Finally, the ALJ found that Listings

1.04A and 1.04B were not met. Id. Moreover, the ALJ thoroughly scrutinized the objective medical evidence pertaining to Mr. Bruette's back and joint disorders in his step two and RFC determinations. He accurately assessed that Mr. Bruette complained of the disorders inconsistently, and that doctors had prescribed conservative treatment with prescription and over-the-counter drugs. (Tr. 446-48, 454-57). I cannot find that the ALJ erred in his analysis.

Second, Mr. Bruette asserts that the ALJ made a serious misstatement in noting that none of the state agency physicians "identified medical signs or findings that meet or medically equal the requirements of any section of Appendix 1." (Pl. Mot. 25-26, Tr. 449) (emphasis added). Mr. Bruette argues that state agency medical consultant, Dr. Cyrus Pezeshki, found that he had "difficulty with ambulation" and noted that he "us[ed] a cane on the right, limping on the left[,]" and thus contradicted the ALJ by finding Mr. Bruette suffered from an inability to walk. (Tr. 247). Under the Listings, an inability to ambulate effectively is defined "generally as having insufficient lower extremity functioning to permit independent ambulation without the use of a hand-held assistive device(s) that limits the functioning of both upper extremities." The statute provides examples of ineffective ambulation, such as "the inability to walk without the use of a walker [or] two crutches or two canes." Pl. Mot. 29; 20 C.F.R. Pt. 404, Subpt. P, App. 1, §

1.00(b)(2). Mr. Bruette used a single cane for many years prior to his alleged disability onset date, and does not allege that he ever used two canes at once. Further, in arguing that he meets the definition, Mr. Bruette points only to his own statements alleging extreme difficulty with walking, which the ALJ found not fully credible. 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.00(b)(1) (internal citations omitted). Dr. Pezeshki noted that Mr. Bruette did not take medication to relieve his complaints of pain, had good range of motion in all joints except the left knee, and did not complain of any pain during the range of movement tests. (Tr. 247). He concluded that Mr. Bruette was capable of performing activity that did not require squatting or kneeling. Id. Further, even had Mr. Bruette established an inability to ambulate effectively, he would meet just one requirement of several under Listings 1.02 and 1.04. Nowhere does Mr. Bruette offer support that he meets all of the requirements of either section. Finally, he appears to argue that where the ALJ stated no "section" had been met, he actually meant none of the "requirements" had been met. I disagree. Each section of the Listings in question has one or more requirements. The ALJ accurately stated that Mr. Bruette's impairments did not meet or equal all of the requirements of any of the sections, i.e. Listings, under Appendix 1.

Third, Mr. Bruette argues that the ALJ erred by omitting discussion of two diagnostic tests in his discussion of the Listings. After the state agency evaluations were completed, Mr. Bruette underwent an August, 2007 x-ray that showed "oasteoarthritis with narrowing of the L4 through S1 disc intraspace and neural foramina." (Tr. 336). Mr. Bruette argues that the 2007 xray*fn1 results constitute evidence of spinal cord narrowing required under Listing 1.04. Listing 1.04A requires evidence of nerve root compression characterized by specific signs of pain, limitation of motion of the spine, motor loss accompanied by sensory or reflex loss, and positive straight-leg raising tests. 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.04A. The ALJ specifically discussed the x-ray in his RFC analysis, (Tr. 448), and expressly confirmed that "the record [did] not document the necessary findings" to meet Listing 1.04A. (Tr. 449). I agree with the Commissioner that the August, 2007 x-ray is consistent with prior imaging results that were reviewed by the state agency consultants who found the Listings not met, and that it did not demonstrate a worsening of Mr. Bruette's condition. Def. Mot. 15 (citing Tr. 213 (a January, 2005 x-ray showing narrowing of the L1-2 and L4-5 disc levels and mild narrowing of the L2-3 levels) and Tr. 243 (a March, 2005 MRI showing narrowing at L1-2, neural foraminal narrowing at L3-4, and narrowing at L4-5)). Further, Mr. Bruette does not point to medical records that demonstrate the other physical manifestations required by Listing 1.04A.

Additionally, Mr. Bruette argues that the ALJ is contradicted by a March, 2005 MRI demonstrating "[m]ultilevel degenerative changes with a moderate spinal stenosis at L4-5 and bilateral foraminal stenosis at L4-5 and L5-S1." (Tr. 243). Listing 1.04C requires both lumbar spinal stenonsis resulting in pain in the buttocks or lower limbs and an inability to ambulate effectively. 20 C.F.R. Pt. 404, Subpt. P, App. 1, ยง 1.04C. The ALJ discussed the results of the March, 2005 MRI in his RFC determination. (Tr. 447). As discussed above, the ALJ found no evidence demonstrating Mr. Bruette had the requisite inability to ...

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