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Booker v. Colvin

United States District Court, E.D. Virginia, Norfolk Division

September 5, 2014

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


DOUGLAS E. MILLER, Magistrate Judge.

Plaintiff Rickey Lee Booker ("Booker") seeks judicial review of the decision of the Commissioner of the Social Security Administration ("Commissioner") denying his claim for a period of disability insurance benefits ("DIB") and supplemental security income ("SSI") under Title II and Title XVI of the Social Security Act. Specifically, Booker claims the ALJ failed to analyze whether his mental limitations constituted a listed impairment and improperly weighed the medical opinion of consultative examiner, Dr. Goodman. This action was referred to the undersigned United States Magistrate Judge pursuant to the provisions of 28 U.S.C. §§ 636(b)(1)(B) and (C), and Rule 72(b) of the Federal Rules of Civil Procedure. For the reasons stated below, this Report concludes that the ALJ's analysis of listed impairments omits the listing most relevant to Booker's alleged impairments. As a result, the undersigned recommends the Court remand to permit analysis of Listing 12-05.


Booker filed applications for SSI and DIB, alleging disability beginning July 15, 2008 due to physical and mental impairments that included seizure activity, hypertension, and leg and heart problems. (R. 166). The Commissioner denied his application initially (R. 124-33), and upon reconsideration. (R. 136-38, 143-45). Booker then requested an administrative hearing, which was conducted in Norfolk on May 3, 2012. (R. 42-62).

An Administrative Law Judge ("ALJ") concluded that Booker was not disabled within the meaning of the Social Security Act, and denied his claim for benefits. (R. 25-35). The Appeals Council denied review of the ALJ's decision (R. 1-3), thereby making the ALJ's decision the final decision of the Commissioner. Booker then filed this action seeking judicial review of the Commissioner's final decision under 42 U.S.C. § 405(g). This case is now before the Court to resolve the parties' cross-motions for summary judgment.


Booker has previous experience as a landscaper. (R. 45, 49-51, 57). He was 53 at the time of the administrative hearing and last worked in 2009. (R. 29, 42, 85). He involuntarily left that employment following an alleged seizure that occurred on the job. (R. 49). On his application, and at the hearing, Booker stated he was unable to work due to recurring seizures that have exacerbated his other conditions over time - specifically his high blood pressure, leg weakness and heart problem. (R. 53-55, 103, 167).

Indeed, Booker's limited medical records document intermittent hospital visits between 2007 and 2012. They generally disclose follow-up care regarding Booker's hypertension and a somewhat inconsistent history of seizure activity, as well as Booker's heavy alcohol use and apparent abuse. Because neither counsel has directed the Court to anything in the prior treatment records that would bear specifically on the ALJ's analysis of listed impairments, a lengthy recitation of Booker's medical background is unnecessary. Booker's medical treatment primarily relates to sporadic complaints of seizures.

As an example, Booker was admitted to the hospital for a possible seizure episode on March 16, 2009. (R. 268). The attending provider noted Booker's history of seizures, hypertension, and alcohol and tobacco abuse, and observed that he had not taken any medication for the past 2 years. Booker also personally admitted to not having had a seizure since 2002. On exam, he had a normal stress test and neurological examination, and was prescribed Keppra for his seizures. After being "strongly counseled" to quit abusing alcohol and tobacco, Booker was discharged in less than 30 minutes. (R. 268-70).

During two follow-up visits in April and July of 2009, Booker presented with controlled hypertension and no seizure activity. (R. 292-93). On both occasions, however, he was admonished to "stop drinking!" Id . Notwithstanding this, Booker presented in an intoxicated state for his July appointment, prompting the provider to assess ethanol abuse. (R. 292). Booker returned a year later, again out of medication, but ready to "take better care of himself." (R. 291). His hypertension had relapsed to an uncontrolled state, but he had had no seizures in the past year. Id . Indeed, Booker's seizure condition remained stable as late as December of 2011. (R. 342).

In addition to his treating providers, Booker's records were reviewed by two state agency physicians. Patricia Staehr, M.D. reviewed the evidence on July 30, 2010. (R. 88-89). She noted Booker had no exertional limitations, but did have some postural restrictions. Id . Specifically, she determined Booker could frequently climb ramps and stairs, balance, stoop, kneel, crouch and crawl, but could never climb ladders, ropes or scaffolds. (R. 89). Additionally, Dr. Staehr noted Booker's seizures were currently controlled with medication and the record disclosed no evidence related to his alleged leg problems.

Martin Cader, M.D. then reviewed Booker's records on March 8, 2011. (R. 108-10). Like Dr. Staehr, Dr. Cader opined that Booker had no exertional limitations, but did suffer from some postural restrictions. Dr. Cader determined Booker could frequently climb ramps and stairs, balance, stoop, kneel, crouch and crawl, but could never climb ladders, ropes, or scaffolds. Id . He also determined Booker should avoid concentrated exposure to identified hazards, such as machinery and heights. (R. 109-10).

At the hearing before the ALJ, Booker testified that he never completed the 8th grade and was unsure whether he participated in any special education program while in school. (R. 47). He indicated that his reading ability was poor, as was his ability to handle his finances or count money. (R. 47-48). Booker also testified he tries shopping for himself, but cannot read labels, and instead relies on product recognition to make his purchases. (R. 48). Booker claimed he was still having seizures, though they "come and go." When asked what happens when he has a seizure he replied, "I don't know. I'll black out and that's it. I wake up in the hospital." (R. 53).

Regarding his leg, Booker testified he had visited a doctor who told him he had a blockage which required him to sit and take breaks frequently only after walking a block. (R. 54). He claimed he could "hardly stand, " and was unable to medically address the issue due to a lack of insurance. (R. 56).

As a result of the intermittent and poorly developed medical history, the ALJ concluded on the record that he would order both a physical and mental consultative examination to supplement the record, but proceeded to examine the Vocational Expert regarding Booker's ability to perform work-related activities. (R. 58-59).

When prompted by the ALJ, the VE described Booker's previous landscaping work as medium, semi-skilled employment based on the supervising role he played. (R. 59). The ALJ asked the VE to consider a hypothetical individual of Booker's age and education, which the ALJ described as "probably seven or eight years of special ed, very limited ability to read and write." (R. 59-60). The VE was asked to assume that such an individual would be limited to simple, routine and repetitive tasks, further limited by a specific vocational preparation ("SVP") of no higher than 1 to 2, "with very minimal and basic reading or math skills needed for the job, only occasional interaction with the public and coworkers, " a stable environment, and a restriction from heights and "hazards of any kind" due to possible seizure activity. (R. 60).

Recognizing those limitations would rule out Booker's past work, the ALJ asked the VE whether other employment opportunities exist in substantial numbers for an individual limited to the outlined conditions. According to the VE, such an individual could work as an assembler of small products and a hand packer/worker at the light level, and a bench assembler and sorter at the sedentary level. Id . These responses were consistent with the DOT. (R. 61).

In response to the ALJ's request for further consultative examinations to be conducted in light of Booker's relatively limited medical records, Booker underwent two consultative examinations shortly after his hearing. First, on May 19, 2012, Matthew Sleziak, D.O., conducted the physical consultative examination. (R. 359-64). During his visit, Booker claimed he had received no treatment for an alleged heart condition, and reported having current symptoms of chronic pain, numbness, shortness of breath and weakness. He also reported a history of seizures, claiming he had had "intermittent seizures that are exacerbated by stress" and that he has not received any recent treatment for that condition. Moreover, Booker complained of chronic pain, stiffness and weakness in both legs. He reported the pain as 8/10 "on most days, " but had not had any treatment for this problem. (R. 359).

On exam, Booker was alert with good eye contact and fluent speech. (R. 361). He had an appropriate mood and a "clear thought process." (R. 361-62). His memory and concentration were also normal, and he appeared well oriented to his surroundings. (R. 362). Physically, Booker had an "unsteady and limping gait, " but no palpable muscle spasms.[1] He was able to lift, carry and handle light objects, as well as dress and undress himself adequately. He was unable, however, to squat, tandem walk, walk on heels and toes and stand or hop on either foot. He also was "not cooperative" and "did not give good effort during the examination." (R. 362). His range of motion was difficult to assess due to his "exaggerated response of pain." (R. 363).

Dr. Sleziak's overall impression of Booker, however, was colored by Booker's apparent lack of effort during the examination itself. According to Dr. Sleziak:

He was unable to complete the exam secondary to pain, which was a much exaggerated response especially on the right leg hip flexion. Leg extension, ankle and plantar flexion was less, but still had a much exaggerated response with screaming and yelling that I was doing something wrong when it was just gradual pressure. Even the claimant reported having a blockage in his right leg, but by just pressing the tibial tuberosity the claimant jumped off of the table.... The claimant was not able to bend his leg past 30 degrees without screaming in pain on examination. The claimant was observed walking out to his car, and when observed he did not seem to have any discomfort. The claimant quickly bent over and got into his car, bending well past the 30 degrees that he was complaining of with his leg. He also put his cane in the backseat of the car and did not walk with it when circling the car once and then getting into the passenger side.... The claimant's limitations were not able to be fully assessed due to this inconsistent examination and very poor effort that seemed very much a malingering situation. (R. 363). Notwithstanding his "very poor effort" at completing the physical exam, Sleziak determined Booker would be able to sit, stand and walk normally in an 8 hour workday with normal breaks, and could lift and ...

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