Everngam v. SSA 08-CV-329-SM 04/06/09
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Marcus Everngam,
Claimant
v. Civil N o . 08-cv-329-SM
Opinion N o . 2009 DNH 050
Michael J. Astrue,
Commissioner, Social
Security Administration,
Respondent
O R D E R
Pursuant to 42 U.S.C. § 405(g), claimant, Marcus Everngam,
moves to reverse the Commissioner’s decision denying his
application for Social Security disability insurance benefits
under Title II of the Social Security Act,
42 U.S.C. § 423. The
Commissioner moves for an order affirming his decision. For the
reasons given below, the Commissioner’s motion is granted.
Standard of Review
The applicable standard of review in this case provides, in
pertinent part:
The [district] court shall have power to enter, upon
the pleadings and transcript of the record, a judgment
affirming, modifying, or reversing the decision of the
Commissioner of Social Security, with or without
remanding the cause for a rehearing. The findings of
the Commissioner of Social Security as to any fact, if
supported by substantial evidence, shall be conclusive
42 U.S.C. § 405(g). However, the court “must uphold a denial of
social security disability benefits unless ‘the [Commissioner]
has committed a legal or factual error in evaluating a particular
claim.’” Manso-Pizarro v . Sec’y of HHS,
76 F.3d 1 5 , 16 (1st Cir.
1996) (quoting Sullivan v . Hudson,
490 U.S. 8 7 7 , 885 (1989)).
As for the statutory requirement that the Commissioner’s
findings of fact be supported by substantial evidence, “[t]he
substantial evidence test applies not only to findings of basic
evidentiary facts, but also to inferences and conclusions drawn
from such facts.” Alexandrou v . Sullivan, 764 F. Supp. 916, 917-
18 (S.D.N.Y. 1991) (citing Levine v . Gardner,
360 F.2d 7 2 7 , 730
(2d Cir. 1966)). In turn, “[s]ubstantial evidence is ‘more than
[a] mere scintilla. It means such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.’” Currier v . Sec’y of HEW,
612 F.2d 5 9 4 , 597 (1st
Cir. 1980) (quoting Richardson v . Perales,
402 U.S. 389, 401
(1971)). Finally, when determining whether a decision of the
Commissioner is supported by substantial evidence, the court must
“review[ ] the evidence in the record as a whole.” Irlanda Ortiz
v . Sec’y of HHS,
955 F.2d 765, 769 (1st Cir. 1991) (quoting
Rodriguez v . Sec’y of HHS,
647 F.2d 2 1 8 , 222 (1st Cir. 1981)). 1
1
“It is the responsibility of the [Commissioner] to
determine issues of credibility and to draw inferences from the
record evidence. Indeed, the resolution of conflicts in the
2
Background
The parties have submitted a Joint Statement of Material
Facts (document n o . 1 0 ) . That statement is part of the court’s
record and will be summarized here, rather than repeated in full.
The medical record in this case includes the following
relevant findings, impressions, and diagnoses, all made by
treating sources. A May 1 6 , 2006, radiology report listed
findings of “[m]ild degenerative changes at L 5 - S 1 facets” and
“[n]ormal sacrum and S I joints,” along with the following
impression: “Mild degenerative facet disease.” (Administrative
Transcript (hereinafter “Tr.”) at 217.) From late August through
early October, 2006, claimant received physical therapy for his
back condition.
On November 2 2 , 2006, Everngam’s claimed onset date, he
sought treatment for pain in his left calf. (Tr. at 227.) After
four days, the pain had not abated, and a follow-up visit
resulted in a clinical impression of lumbar radiculopathy.2 (Id.
at 243.) A radiology report dated November 27 found: “There
[are] some mild degenerative changes of the facet joint at L 5 - S 1 .
evidence is for the [Commissioner], not the courts.” Irlanda
Ortiz, 955 F.2d at 769 (citations omitted).
2
“Radiculopathy” is a “disease of the nerve roots.”
DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1595 (31st ed. 2007).
3
The disk spaces are preserved. There have been no significant
changes.” (Id. at 248.) A November 30 MRI revealed the
following:
At L5-S1 there is a large left posterior paracentral
disk herniation with some extruded disk material seen
to the left of midline and posteriorly to the S1 level.
There is some mass effect on the thecal sac anteriorly
and laterally on the left as well as apparent mass
effect upon the left S1 nerve root and likely S2 with
lateral recess compromise. There is some degenerative
change of the facet joints at L5-S1.
(Id. at 250.) Based on those findings, Everngam was assessed
with “[l]umbar radiculitis3 secondary to . . . L5-S1 herniated
nucleus pulposus.” (Id.) Those findings also led to the
following impression: “L5-S1: Large left posterior paracentral
disk herniation of intrusion type with some mass effect upon the
thecal sac and the left S1 and S2 nerve roots.” (Id. at 252.) A
December MRI scan revealed “a large soft tissue mass at L5-S1 on
the left displacing the thecal sac and nerve root consistent with
a disc herniation,” (id. at 3 9 0 ) , which led to the following
impression: “Back pain and left S1 radiculopathy secondary to L5-
S1 HNP with some element of nerve root compromise,” ( i d . ) .
From December, 2006, through January, 2007, Everngam
underwent a series of epidural steroid injections for his back
3
“Radiculitis” is an “inflamation of the root of a spinal
nerve.” DORLAND’S, supra note 2 , at 1595.
4
condition. On April 4 , 2007, Everngam received the following
medical assessment: “Discogenic low back pain. The symptoms of
radiculopathy appear to have resolved. Neurologic examination
reveals preserved neurologic function.” (Tr. at 392.) The most
recent treating-source medical note in the administrative record,
dated May 1 6 , 2007, includes the following assessment:
“Resolution of lumbar radiculopathy with conservative measures.
Neurological examination reveals preservation of nerve root
function.” (Id. at 394.) In the same note, under the heading
“Plan,” D r . Palacio reported: “No further diagnostic or
therapeutic measures are recommended at this point. M r . Everngam
has had a very satisfactory resolution of the radiculopathy
secondary to his herniated disk.” (Id.) D r . Palacio concluded:
I explained to M r . Everngam that, certainly, at some
point, he could have a recurrence of the disk
herniation with radicular symptoms. However, he is not
at risk for a permanent irreversible neurologic injury
and that any time he has a recurrence, appropriate
measures can be taken in a timely fashion, and
treatment need not necessarily require surgical
intervention. Overall, his long-term prognosis is
good. Followup will continue an a p.r.n. basis.
(Id. at 395.) In other words, in the opinion of a treating
physician, Everngam’s radiculitis/radiculopathy and his herniated
disk had both resolved by May 1 6 , 2007, less than six months
after they had been diagnosed.
5
During the course of his treatment, claimant underwent
straight-leg raising tests on the following dates, with the
following results: May 1 6 , 2006, negative bilaterally (Tr. at
3 5 7 ) ; May 1 9 , 2006, negative bilaterally (id. at 3 5 8 ) ; August 2 2 ,
2006, negative bilaterally (id. at 3 6 2 ) ; September 1 9 , 2006,
negative bilaterally (id. at 3 6 3 ) ; November 2 7 , 2006, right leg
negative, left leg positive for pain at forty-five degrees (id.
at 3 6 4 ) ; November 3 0 , 2006, positive to forty degrees on the left
(id. at 2 5 0 ) ; December 2 6 , 2006, positive at forty-five degrees
on the left (id. at 3 7 4 ) ; January 3 0 , 2007, negative bilaterally
(id. at 3 8 3 ) ; February 2 2 , 2007, positive on the left (id. at
3 9 0 ) ; March 2 8 , 2007, negative bilaterally (id. at 3 7 1 ) ; April 4 ,
2007, positive on the left (id. at 3 9 2 ) ; May 1 6 , 2007, negative
bilaterally (id. at 3 9 4 ) .
Everngam filed an application for Social Security disability
insurance benefits on March 1 , 2007, a little more than three
months after his claimed onset date of November 2 2 , 2006. After
conducting a hearing on Everngam’s claim, the Administrative Law
Judge (“ALJ”) issued a decision which included the following
findings:
3 . The claimant has the following severe impairment:
low back pain with a herniated disc at L5-S1 (20 CFR
404.1520(c)).
. . . .
6
4 . The claimant does not have an impairment or
combination of impairments that meets or medically
equals one of the listed impairments in 20 CFR Part
404, Subpart P, Appendix 1 (20 CFR 404.1520(d),
404.1525, 404.1526).
(Tr. at 9-12.) The ALJ explained the foregoing finding in the
following way:
Listing 1.04 establishes that a disorder of the spine
is disabling based upon the medical evidence alone
where, in relevant part, the condition results in
compromise of a nerve root with evidence of nerve root
compression characterized by neuro[ ]-anatomic
distribution of pain, limitation of motion of the
spine, motor loss (atrophy associated with 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).
In this case the claimant[’s] MRI testing did show disc
herniation, but in December 2006 D r . Dirksmeier noted a
non-antalgic gait and no[ ] muscle spasm. Straight leg
testing in January 2007 was negative.
(Tr. at 1 0 ) .
Discussion
Everngam argues that the ALJ’s decision should be reversed,
and the case remanded, because the ALJ incorrectly determined
that he did not have a listed impairment.
To be eligible for disability insurance benefits, a person
must: (1) be insured for such benefits; (2) not have reached
7
retirement age; (3) have filed an application; and (4) be under a
disability. 42 U.S.C. §§ 423(a)(1)(A)-(D). The issue in this
case is whether Everngam was under a disability during the time
for which he sought benefits.
For the purpose of determining eligibility for disability
insurance benefits,
[t]he term “disability” means . . . inability to engage
in any substantial gainful activity by reason of any
medically determinable physical or mental impairment
which can be expected to result in death or which has
lasted or can be expected to last for a continuous
period of not less than 12 months.
42 U.S.C. § 423(d)(1)(A). The relevant Social Security
regulations further provide: “Unless your impairment is expected
to result in death, it must have lasted or must be expected to
last for a continuous period of at least 12 months. We call this
the duration requirement.”
20 C.F.R. § 404.1509
In order to determine whether a claimant is disabled, the
Commissioner is required to employ a five-step process. See 20
U.S.C. §§ 404.1520.
The steps are: 1 ) if the [claimant] is engaged in
substantial gainful work activity, the application is
denied; 2 ) if the [claimant] does not have, or has not
had within the relevant time period, a severe
impairment or combination of impairments, the
application is denied; 3 ) if the impairment meets the
8
conditions for one of the “listed” impairments in the
Social Security regulations, then the application is
granted; 4 ) if the [claimant’s] “residual functional
capacity” is such that he or she can still perform past
relevant work, then the application is denied; 5 ) if
the [claimant], given his or her residual functional
capacity, education, work experience, and age, is
unable to do any other work, the application is
granted.
Seavey v . Barnhart, 276 F.3d 1 , 5 (1st Cir. 2001) (citing
20
C.F.R. § 416.920, which outlines the same five-step process as
the one prescribed in
20 C.F.R. § 1520).
Claimant bears the burden of proving that he is disabled.
See Bowen v . Yuckert, 482 U.S. 1 3 7 , 146 (1987). He must do so by
a preponderance of the evidence. See Mandziej v . Chater,
944 F.
Supp. 1 2 1 , 129 (D.N.H. 1996) (citing Paone v . Schweiker,
530 F.
Supp. 8 0 8 , 810-11) (D. Mass. 1982)).
Regarding step three – the point in the five-step evaluation
process where Everngam argues the ALJ erred – the regulations
provide: “If you have an impairment(s) that meets or equals one
of our listings in appendix 1 of this subpart and meets the
duration requirement, we will find that you are disabled.” 20
C.F.R. § 404.1520(a)(4)(iii) (emphasis added); see also Torres v .
Comm’r of SSA,
279 Fed. Appx. 149, 151 (3d Cir. 2008). In
addition, “[t]he applicant must satisfy all of the criteria in
the Listing in order to receive an award of disability insurance
9
benefits . . . under step three.” Rice v . Barnhart, 384 F.3d
363, 369 (7th Cir. 2004) (citation omitted) (emphasis added);
Huntington v . Apfel,
101 F. Supp. 2d 3 8 4 , 391 (D. Md. 2000)
(citing Sullivan v . Zebley,
493 U.S. 5 2 1 , 531 (1990)) (“In order
to meet a Listing, every element of the listing must be
satisfied.”). Thus, to be disabled at step three, a claimant
must have suffered, or be expected to suffer, all the elements of
a listed impairment continuously for twelve months.
In Huntington, the district court affirmed an ALJ’s step-
three determination of non-disability, based upon a record in
which the some of the required elements of the listed impairment
were sometimes present, but the elements were not simultaneously
present for the required continuous twelve-month span. 101 F.
Supp. 2d at 391. The court based its ruling on findings such as
these:
Although plaintiff did suffer muscle spasms [one
element of the listed impairment] in August, 1975 and
June 1991, nothing in the record suggests that the
spasms continued between 1975 and 1991 or were
frequent, ongoing and persistent, as required by
Listing 1.05C. Similarly, the medical records note
that motor loss was present only during May and June
1984 and again in December 1991 and January 1992 but
the records do not establish that the motor loss was
persistent, as required under the Listing.
As to muscle weakness [a second element of the
listed impairment], plaintiff cites to May and June
1984 and December 1991 and January 1992 reports to
support the presence of this symptom. The records
10
reflect, however, that these occasional periods of
muscles weakness were initially reported after surgery,
but reports in June 1991, August 1991 and November
1992, reveal good strength and muscle development and
no clinical strength deficits.
Similarly, plaintiff’s claim of sensory loss [a
third element of the listed impairment] is unsupported
by the record. The only information (other than
isolated references in 1975 and 1984) relating to
sensory loss is an October 3 1 , 1991 progress report
indicating diminished sensation in the “medial one and
one-half fingers of his right hand.” Within a few
days, on November 4 , 1991, this numbness had completely
resolved.)
Id. at 391-92 (citations to the record omitted).
Everngam argues that the ALJ erred, at step three, by
determining that he did not have the listed impairment “disorders
of the spine,” as described in 20 C.F.R. § 4 0 4 , Subpart P,
Appendix 1 , § 1.04A. More specifically, he argues that the ALJ’s
step-three determination was erroneous because the ALJ failed to
consider, and thus rejected, most of the opinions of his treating
physicians, and failed to give clear and convincing reasons for
rejecting those opinions. Among other things, he cites the ALJ’s
failure to refer to various relevant diagnoses, and the fact that
the ALJ mentioned one straight-leg raising test with a negative
result, i.e., a result that favored a finding of non-disability,
but did not mention several other leg-raising tests with positive
results.
11
The Commissioner counters that the ALJ’s determination was
supported by substantial evidence. He further contends that
claimant does not identify any medical opinion the ALJ failed to
consider that contradicts the ALJ’s finding, and that there is no
evidence in the record that would support a determination that
claimant suffered a listing-level impairment that lasted or was
expected to last for a continuous period of at least twelve
months, as required by 42 U.S.C. § 423(d)(1)(A). The
Commissioner’s arguments are persuasive.
At step three, “if the impairment meets the conditions for
one of the ‘listed’ impairments in the Social Security
regulations, then the application is granted.” Seavey, 276 F.3d
at 5 (citation omitted). The relevant regulations define the
listed impairment Everngam claims as follows:
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).
12
20 C.F.R. § 4 0 4 , Subpt. P, App. 1 . And, as noted above, for an
impairment to meet a listing, it must have lasted or be expected
to last for a continuous period of at least twelve months. See
20 C.F.R. § 404.1520(a)(4)(iii); Huntington,
101 F. Supp. 2d at
391-92.
Regarding the weight that should be given to the opinions of
treating sources, the pertinent regulations provide:
Generally, we give more weight to opinions from [the
claimant’s] treating sources, since these sources are
likely to be the medical professionals most able to
provide a detailed, longitudinal picture of [the
claimant’s] medical impairment(s) . . . When we do not
give the treating source’s opinion controlling weight,
we apply the factors listed [in this section] in
determining the weight to give the opinion. We will
always give good reasons in our notice of determination
or decision for the weight we give [the claimant’s]
treating source’s opinion.
20 C.F.R. § 404.1527(d)(2). In addition, the ALJ has an
obligation to resolve inconsistencies in the evidence. See
20
C.F.R. § 404.1527(c)(2) (“If any of the evidence in your case
record, including any medical opinion(s), is inconsistent with
other evidence or is internally inconsistent, we will weigh all
of the evidence and see whether we can decide whether you are
disabled based on the evidence we have.”).
13
This case is very different from most of those in which a
claimant invokes the rules for evaluating treating-source
opinions; claimant does not argue that the ALJ erred by relying
upon the opinion of a non-treating or non-examining medical
source over the opinion of a treating source. Rather, he appears
to fault the ALJ for relying upon treating-source medical
evidence that undermined a determination of disability, while
turning a blind eye to other treating-source evidence that
supported such a determination, and he calls the existence of
both positive and negative leg-raising test results an
inconsistency in the record that required resolution by the ALJ.
The court will assume, for the sake of argument, that
claimant is correct in asserting that the ALJ considered only the
medical evidence referenced in his decision. Still, the record
as a whole, including the evidence claimant criticizes the ALJ
for ignoring, does not contain the quantum of evidence necessary
to support a determination that claimant suffered from a listed
impairment. Claimant was diagnosed with degenerative facet
disease in May, 2006, and in November of that same year, he was
diagnosed with lumbar radiculitis secondary to a herniated disk.
But the mere diagnosis of a recognized disorder of the spine is
not enough. To be a listed impairment, the disorder of the spine
Everngam claims must “result[ ] in the compromise of a nerve
14
root,” 20 C.F.R. § 4 0 4 , Subpt. P, App. 1 , 1.04A, must be
accompanied by “positive straight-leg raising test,”4
id., and
all the elements of the impairment must have lasted, or be
expected to last, for at least twelve months, see
42 U.S.C. §
423(d)(1)(A);
20 C.F.R. §§ 404.1509 & 404.1520(a)(4)(iii).
Of the spinal disorders with which claimant was diagnosed,
two of them – radiculitis and a herniated disk – resolved within
six months of diagnosis. Thus, neither condition is sufficient
support a determination of disability. That leaves degenerative
facet disease. The court will assume that facet disease
qualifies as a disorder of the spine for purposes of the
listings, and will further assume that use of the term
“degenerative” to describe claimant’s facet disease constitutes a
medical opinion that his facet disease will last for more than
twelve months. Even when the record is considered in light of
those favorable assumptions, however, it cannot support a
determination of disability.
Neither claimant’s nerve-root compromise nor his positive
straight-leg raising tests – essential elements of the listed
disorder – meet the requisite twelve-month duration requirement.
4
This is because Everngam claims a disorder of the lower
back.
15
The earliest evidence of nerve-root compromise in this case is
the November 2 6 , 2006, clinical impression of lumbar
radiculopathy. But, in early April, 2007, D r . Palacio, a
treating physician, characterized claimant’s radiculopathy as
“resolved,” and he reiterated that opinion about six weeks later,
and also observed a “preservation of nerve root function.” At
most, the record supports a determination that claimant had one
or more compromised or compressed spinal nerve roots from late
November, 2006, through early April, 2007, which, obviously,
falls short of satisfying the duration requirement.
The results of Everngam’s straight-leg raising test are
similarly unavailing to his claim. Claimant criticizes the ALJ
for mentioning the negative straight-leg raising test from
January, 2007, without mentioning other leg-raising tests with
positive results. Notwithstanding claimant’s apparent contention
to the contrary, his positive straight-leg raising tests on some
dates are not inconsistent with his negative one(s) on other
dates. Rather, those tests are, collectively, evidence of a
medical condition that was symptomatic on some occasions but not
others. Thus, the ALJ was under no obligation to say why he
mentioned the results of one leg-raising test but not the results
of others. Moreover, even if claimant’s January leg-raising test
had been positive, claimant had leg-raising tests that were
16
negative bilaterally in March and May, 2006, less than twelve
months after his first positive test on November 27, 2006, which,
again, falls short of satisfying the duration requirement.
In sum, the medical record does not document any continuous
twelve-month period during which claimant suffered from: (1)
degenerative facet disease, radiculitis, or a herniated disc and
(2) nerve-root compromise with (3) positive straight-leg raising
test. Because a claimant must satisfy all the elements of a
listed impairment, see Rice, 384 F.3d at 369; Huntington,
101 F.
Supp. 2d at 391, for a full twelve months, see
20 C.F.R. §
404.1520(a)(4)(iii), the ALJ’s determination that claimant did
not suffer from a listed impairment is supported by substantial
evidence, and must be affirmed.
Conclusion
For the reasons given, claimant’s motion to reverse and/or
remand (document no. 8) is denied, and the Commissioner’s motion
for an order affirming the ALJ’s decision (document no. 9) is
granted. The clerk of the court shall enter judgment in
accordance with this order and close the case.
SO ORDERED.
St ___ ven J./McAuliffe
Chief Judge
April 6, 2009
17
cc: Christopher G. Roundy, Esq.
Vicki S . Roundy, Esq.
Gretchen L . Witt, Esq.
18
