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Butler v. Barnhart

January 13, 2004


Appeal from the United States District Court for the District of Columbia (No. 99cv00488)

Before: Henderson, Tatel and Garland, Circuit Judges.

The opinion of the court was delivered by: Karen Lecraft Henderson, Circuit Judge

Argued September 19, 2003

Joan Butler appeals from the district court's judgment affirming the denial by the Social Security Administration (SSA) Commissioner (Commissioner) of her application for disability insurance benefits under Title II of the Social Security Act (Act), 42 U.S.C. §§ 401 et seq., and supplemental security income under Title XVI of the Act, 42 U.S.C. §§ 1381 et seq. On appeal Butler maintains that the decision of the Administrative Law Judge (ALJ) who evaluated her case is not supported by substantial evidence in the record and was reached by the incorrect application of relevant legal standards. We agree; therefore, we reverse the judgment of the district court and remand to that court with instructions to remand in turn to the Commissioner for further proceedings.


Joan Butler is today a 50-year-old woman with a tenthgrade education and no additional training, vocational or otherwise. From 1990 through part of 1995, Butler worked as an Environmental Services Technician (EST) at Greater Southeast Community Hospital (GSCH) in Washington, D.C.; in this capacity she performed such tasks as making beds, mopping floors and cleaning. In early August 1995 Butler suffered a severe migraine headache and was admitted to GSCH. She stayed for four days, during which time she was treated by a neurologist, Dr. William Lightfoote. His notes indicate that Butler experienced three similar "episodes" during the past five years. Joint Appendix (JA) 163. He placed her on medication (Inderal) and scheduled diagnostic tests. The results of the tests were normal and Lightfoote scheduled additional tests, including magnetic resonance imaging (MRI). On August 22, 1995 Butler attempted to return to work but suffered another migraine; the following day she saw Lightfoote who counseled her to remain off-duty for the next five days.

On August 29, 1995 Lightfoote reported that while Butler's headaches had subsided, she was experiencing "low back pain, with radiation into the lateral aspect of both legs." Id. 209. Lightfoote noted that the pain prevented Butler from getting out of bed. He ordered an MRI of the lumbar spine, an electromyogram (EMG) and nerve conduction tests of both lower extremities. The MRI found "narrowing and degeneration at L5-S1 - with a very small, subligamentous herniation of nuclear material to the right of midline that minimally flattens the thecal sac. Narrowing and degeneration at L4-5 - with a diffusely bulging annulus - [and] mild dextroscoliosis." Id. 156. Butler suffered another migraine on September 6, 1995 and the next day Lightfoote noted that she should remain off-duty until additional medical opinions could be obtained. Lightfoote also indicated that he would obtain a second neurological opinion from Dr. Taghi Asadi.

On Lightfoote's referral, Butler saw Dr. Alfred Pavot, who performed an electroneurodiagnostic study. On September 11, 1995 Pavot reported that the results of the study were consistent with lumbrosacral facet syndrome. Butler saw Asadi later that week. Asadi's report noted that Butler had "a history of low back pain" but was referred to him regarding the "diagnosis and management of her headaches." Id. 207. He described her headaches as having "a character of becoming cluster-like with more frequent attacks for a couple of weeks" and noted that his physical examination revealed "no limitation of the cervical spine." Id. Asadi concluded that she suffered migraines with "aura" and started her on Elavil, as she was already "receiving the maximum dose of Inderal." Id.

On October 17, 1995 Lightfoote observed that Butler continued to suffer lower back pain and diagnosed a herniated inverterbral disc and lubrosacral facet syndrome. He noted that when she returned to work she would "not be able to do any lifting, bending, or stooping," "no lifting greater than 10 pounds" and that this limitation would "have to be written in her 'return-to-work contract.' "*fn1 Id. 188. Later that month Lightfoote completed a disability form for Butler, in which he stated that he could not determine when she would be able to return to work and described her condition as "severe limitation of functional capacity; incapable of minimal (sedentary) activity." Id. 101.

On November 16, 1995 Lightfoote reported that while Butler's headaches were "subsiding," she continued to experience "significant" pain in her lower back. Id. 187. He noted that Butler "can hardly get out of bed, without rolling over first and rolling herself out of the bed to the floor," "has difficulty standing up" and suffers "severe pain radiating into the lower extremities." Id. He stated that he doubted she would be able to return to her position at GSCH. On December 9, 1995 Lightfoote described Butler's condition as "migraine with visual fortification spectra, lumbar disc herniation and lumbar facet syndrome." Id. 176. Based on this diagnosis, he concluded that Butler was capable of performing sedentary, clerical or administrative work with certain restrictions. Specifically, he noted that Butler could not sit or stand for more than one hour at a time or lift objects heavier than 10 pounds and that she should never climb, bend or stoop. On a disability form completed around the same time, Lightfoote noted these restrictions on Butler's future work activities but characterized her prognosis as "good." Id. 153. He further identified Butler as a candidate for rehabilitation services, job modification and vocational counseling.

On January 23, 1996 Lightfoote opined that Butler's headaches had become infrequent and concluded that she "is now ready" to return to work in a capacity consistent with the restrictions identified in his earlier reports. Id. 204. On April 16, 1996 Lightfoote again observed that Butler's headaches were "very infrequent" but noted that her lumbar spine problems persisted. Id. 203. He stated that she had a herniated disk at two levels "at least" and some days could not get out of bed. Id. He also referred her to Dr. Lavern Bentt for lumbar epidural steroid injections.

In a report dated May 6, 1996 Bentt stated that during the previous six months Butler's back pain had progressively worsened "to the point where she cannot sit up and stand out of bed and needs to roll herself out of bed in order to avoid excruciating pain." Id. 148. Bentt also remarked that aside from the moderate relief provided by physical therapy "there has been nothing that [Butler] has tried so far which has improved her pain." Id. Bentt noted the results of a CT myelogram, "which demonstrated mild anterior extradural defects of the thecal sac at L4-5 and L5-S1." Id. He performed a therapeutic lumbar epidural injection and proposed a series of additional injections in the event the first provided Butler "some degree of relief." Id. Butler subsequently received two additional lumbar epidural injections. At the time Butler received her third epidural injection, Bentt noted that the previous two had succeeded in easing her pain; each injection provided two weeks of complete relief but the pain eventually returned, "although not to the same intensity and degree." Id. 132. His report also noted that her MRI and CT myelogram showed "nerve root pathology at both L4-5 and L5-S1." Id. Bentt planned for Butler to return in two to three weeks for diagnostic lumbar L4-5 and L5-S1 facet joint injections. The record is silent on whether Butler received the additional injections.

According to Lightfoote's July 9, 1996 report, he completed disability forms for Butler in which he recommended that her job be modified to accommodate her back pain and headache disorder and that she receive vocational counseling and/or retraining. On the disability form, Lightfoote classified Butler's physical impairments as "severe," signifying that she is "incapable of minimal activity or sedentary work." Id. 128. Although he indicated that a job modification would enable Butler to work with her impairments, he explained that Butler could not lift, bend, stoop, push or pull and characterized her prognosis for recovery as good to poor. Id. In his July 16, 1996 report Lightfoote stated that Butler should consider retirement on total disability or "cross-training with Vocational Rehabilitation, so that she can get a job that does not entail any lifting, bending, stooping or reaching." Id. 125. In a November 3, 1996 report Lightfoote stated that Butler was "continuing in a stable situation" but needed a transcutaneous electrical nerve stimulator (TENS) unit -- a small device used to produce electroanalgesia -- from GSCH.*fn2

On November 19, 1996 Dr. James Yan, a neurologist, evaluated Butler at the request of the Disability Determinations Division of the District of Columbia Rehabilitation Services Administration (Disability Determinations Division). Yan noted that for the past three years, Butler's "main problem" had been "severe disk disease over the lumbosacral area" but that she also was hospitalized as a result of her last migraine headache, during which she experienced "a strokelike syndrome." Id. 106. After finding that Butler "has severe pain which causes inability to get up easily," "cannot stand up for too long," "cannot lift heavy objects," and suffers "complex migraine headaches, which come on almost once every two months - [and] compromise her performance at work," Yan concluded that her examination was "otherwise - basically within normal limits." Id. 107. He also opined that Butler's spinal disks appeared to be within "normal limits." Id. On November 18, 1996 the Disability Determinations Division referred Butler to Dr. Harry Press for a radiology study. Two days later, Press performed a lumbar spine examination which revealed a "mild" scoliosis and atherosclerosis but was "otherwise negative." Id. 104.

From December 1996 to March 1997, Lightfoote issued his last set of reports contained in the record. On December 17, 1996 Lightfoote stated that Butler received a TENS unit for her lower back pain and that he added lithium carbonate to her prescribed medications to combat her "lingering" headache disorder. Id. 198. On March 17, 1997 Lightfoote opined that Butler continued to experience lower back pain and "pounding in the head" and again adjusted her prescription regimen. Id. 196. On the same day he stated that Butler had evidence of herniated nucleus pulposus (HNP) in her lumbar region, that an independent medical examination (IME) disclosed a possible herniated disc in ...

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