Trusty v. Astrue

Filing 20

MEMORANDUM OPINION AND ORDER it is Ordered that the decision of the Commissioner be and is hereby reversed and remanded to the Commissioner for further proceedings consistent with this opinion; It is further Ordered that, in accordance with Bergen v. Comm'r of Soc. Sec., 454 F.3d 1273, 1278 fn.2 (11th Cir. 2006), the plaintiff shall have 60 days after he receives notice of any amount of past due benefits awarded to seek attorney's fees under 42 U.S.C. 406(b) as further set out in order. Signed by Honorable Charles S. Coody on 2/17/09. (Attachments: # 1 appeals checklist)(vma, )

IN THE DISTRICT COURT OF THE UNITED STATES F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION J O N A T H A N TRUSTY, P l a in tif f , v. M IC H A E L J. ASTRUE, C o m m is s io n e r of Social Security, D e f e n d a n t. ) ) ) ) ) C I V IL ACTION NO. 2:07cv1115-CSC ) (WO) ) ) ) )

M E M O R A N D U M OPINION and ORDER I . Introduction T h e plaintiff applied for disability insurance benefits pursuant to Title II of the Social S e c u rity Act, 42 U.S.C. § 401 et seq., and supplemental security income benefits under Title X V I of the Social Security Act, 42 U.S.C. § 1381 et seq., alleging that he was unable to work b e c au s e of a disability. His application was denied at the initial administrative level. The p lain tiff then requested and received a hearing before an Administrative Law Judge ("ALJ"). F o llo w in g the hearing, the ALJ also denied the claim. The Appeals Council rejected a s u b s e q u e n t request for review. The ALJ's decision consequently became the final decision of the Commissioner of Social Security (Commissioner).1 See Chester v. Bowen, 792 F.2d 129, 1 3 1 (11 th Cir. 1986). The case is now before the court for review pursuant to 42 U.S.C. §§ 405 (g ) and 1631(c)(3). The parties have consented to the United States Magistrate Judge

Pursuant to the Social Security Independence and Program Improvements Act of 1994, Pub.L. No. 103-296, 108 Stat. 1464, the functions of the Secretary of Health and Human Services with respect to Social Security matters were transferred to the Commissioner of Social Security.

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c o n d u c tin g all proceedings in this case and ordering the entry of final judgment, pursuant to 28 U .S .C . § 636(c)(1) and M.D. Ala. LR 73.1. Based on the court's review of the record in this c a s e and the briefs of the parties, the court concludes that the decision of the Commissioner m u s t be reversed and this case remanded for further proceedings. I I . Standard of Review U n d e r 42 U.S.C. § 423(d)(1)(A), a person is entitled to disability benefits when the p e rso n is unable to e n g a g e in any substantial gainful activity by reason of any medically determinable p h ys ic a l or mental impairment which can be expected to result in death or which h a s lasted or can be expected to last for a continuous period of not less than 12 m o n th s . . . To make this determination, 2 the Commissioner employs a five-step, sequential e v a lu a tio n process. See 20 C.F.R. §§ 404.1520, 416.920. (1 ) (2 ) (3 ) (4 ) (5 ) Is the person presently unemployed? Is the person's impairment severe? D o e s the person's impairment meet or equal one of the specific im p a irm e n ts set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1? Is the person unable to perform his or her former occupation? Is the person unable to perform any other work within the economy?

A n affirmative answer to any of the above questions leads either to the next q u e stio n , or, on steps three and five, to a finding of disability. A negative answer to any question, other than step three, leads to a determination of "not disabled." M c D a n ie l v. Bowen, 800 F.2d 1026, 1030 (11 th Cir. 1986).3

A "physical or mental impairment" is one resulting from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques. McDaniel v. Bowen, 800 F.2d 1026 (11th Cir. 1986) is a supplemental security income case (SSI). The same sequence applies to disability insurance benefits. Cases arising under Title II are appropriately
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T h e standard of review of the Commissioner's decision is a limited one. This court must f in d the Commissioner's decision conclusive if it is supported by substantial evidence. 42 U .S .C . § 405(g); Ingram v. Comm. of Soc. Sec. Admin., 496 F.3d 1253, 1260 (11 th Cir. 2007). " S u b s ta n tia l evidence is more than a scintilla, but less than a preponderance. It is such relevant e v id e n c e as a reasonable person would accept as adequate to support a conclusion." Richardson v . Perales, 402 U.S. 389, 401 (1971). A reviewing court may not look only to those parts of the re c o rd which supports the decision of the ALJ but instead must view the record in its entirety a n d take account of evidence which detracts from the evidence relied on by the ALJ. Hillsman v . Bowen, 804 F.2d 1179 (11 th Cir. 1986). [ T h e court must] . . . scrutinize the record in its entirety to determine the r e a s o n a b le n e ss of the [Commissioner's] . . . factual findings . . . No similar p r e s u m p t io n of validity attaches to the [Commissioner's] . . . legal conclusions, in clu din g determination of the proper standards to be applied in evaluating claims. W a lk e r v. Bowen, 826 F.2d 996, 999 (11 th Cir. 1987). I I I . The Issues A . Introduction. Plaintiff Jonathan Trusty ("Trusty") is 48 years old and has a twelfth g ra d e education. (R. 19). Trusty's prior work experience includes work as a "long haul truck d riv e r, fast food restaurant manager, and delivery driver." (R. 23). Following the hearing, the A L J concluded that the plaintiff has severe impairments of "status-post acute inferior myocardial in f a rc tio n status-post coronary artery bypass grafting x3; diabetes mellitus; morbid obesity; o s te o m ye litis ; and right lower extremity deep venous thrombosis. (R. 20). The ALJ concluded

cited as authority in Title XVI cases. See e.g. Ware v. Schweiker, 651 F.2d 408 (5th Cir. 1981) (Unit A).

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th a t Trusty does not suffer from a medically determinable mental impairment. (R. at 21). The ALJ concluded that Trusty could not perform any of his past relevant work, and, re lyin g solely on the Medical-Vocational Guidelines, 20 C.F.R. Pt. 404, Subpt. P., App. 2, c o n c lu d e d that Trusty was not disabled. (R. 23). B. Plaintiff's Claims. As stated by the plaintiff, Trusty presents the following two is s u e s for the Court's review: 1. T h e Commissioner's decision should be reversed, because the ALJ erred in mechanically applying the Medical-Vocational Guidelines in d e m o n s tra tin g that there were significant jobs existing in the national e c o n o m y that Mr. Trusty could perform. T h e Commissioner's decision should be reversed, because the ALJ im p ro p e rly acted as both a judge and physician.

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(P l's Br. at 11). IV. Discussion A disability claimant bears the initial burden of demonstrating an inability to return to his p a s t work. Lucas v. Sullivan, 918 F.2d 1567 (11 th Cir. 1990). In determining whether the

c la im a n t has satisfied this burden, the Commissioner is guided by four factors: (1) objective m e d ic a l facts or clinical findings, (2) diagnoses of examining physicians, (3) subjective evidence o f pain and disability, e.g., the testimony of the claimant and his family or friends, and (4) the c la im a n t's age, education, and work history. Tieniber v. Heckler, 720 F.2d 1251 (11 t h Cir. 1 9 8 3 ). Trusty raises several issues and arguments related to this court's ultimate inquiry of w h e th e r the Commissioner's disability decision is supported by the proper legal standards and 4

b y substantial evidence. See Bridges v. Bowen, 815 F.2d 622 (11 th Cir. 1987). However, the c o u rt pretermits discussion of Trusty's second argument because the court concludes that the A L J erred as a matter of law and, thus, this case is due to be remanded for further proceedings. T ru sty contends that the ALJ erred as a matter of law by improperly relied the MedicalV o ca tio n al Guidelines, 20 C.F.R. Pt. 404, Subpt. P., App. 2, ("Grids") because Trusty suffers f ro m the non-exertional impairment of pain that significantly affects his ability to perform work. T h e court agrees. In his analysis, the ALJ found that Trusty's "right lower extremity pain secondary to deep v en o u s thrombosis significantly compromises his capacity for standing and walking." (R. 22). H e also concluded that Trusty's "morbid obesity, back pain secondary to osteomyelitis, and lo w e r extremity symptoms secondary to diabetes mellitus further reduce [his] capacity to tolerate s ta n d in g and walking." (Id.) The ALJ then concluded that "[b]ased on a residual functional capacity for the full range o f sedentary work, considering the claimant's age, education, and work experience, a finding o f "not disabled" is directed by the Medical-Vocational Rule 201.21." (R. 23). The ALJ thus re lie d solely on Rule 201.21 of the Grids to conclude that Trusty is not disabled. Exclusive reliance on the grids is appropriate in cases involving only exertional im p a irm e n ts (impairments which place limits on an individual's ability to meet jo b strength requirements.). . . Exclusive reliance on the grids is inappropriate w h e n a claimant has a non-exertional impairment that significantly limits the c la im a n t 's basic work activities. F o o te v. Chater, 67 F.3d 1553, 1559 (11 th Cir. 1995). See also Sryock v. Heckler, 764 F.2d 834 (1 1 th Cir. 1985). 5

[I]n determining residual functional capacity only exertional limitations are c o n sid e re d . . . If a claimant has nonexertional impairments that significantly limit th e ability to do basic work activities . . . then the grid regulations do not apply. . . . However, when both exertional and nonexertional work impairments exist the g rid s may still be applicable. [N]on­exertional limitations can cause the grid to b e inapplicable only when the limitations are severe enough to prevent a wide ra n g e of gainful employment at a designated level. Therefore, when both e x e rtio n a l and nonexertional limitations affect a claimant's ability to work, the A L J should make a specific finding as to whether the nonexertional limitations are severe enough to preclude a wide range of employment at the given work c a p a c ity level indicated by the exertional limitations. Courts will review this d e te rm in a tio n only to determine whether it is supported by substantial evidence. S r y o c k, 764 F.2d at 836 (internal citations omitted). In this case, the ALJ found that Trusty's lower extremity pain caused by his deep venous th ro m b o sis as well as his back pain caused by osteomyelitis significantly compromised his a b i lity to work. (R. 22). Although the ALJ finds both exertional and nonexertional limitations, t h e ALJ failed to make the specific findings regarding the severity of the nonexertional lim ita tio n s on Trusty's ability to work. Rather, the ALJ conflates severity analysis by

c o n sid e rin g Trusty's exertional limitations without considering the nonexertional limitations c a u s e d by his pain. Moreover, where there exists the non-exertional impairment of pain, the preferred method o f determining what work Trusty could perform is through the testimony of a vocational expert. T h u s , the ALJ's failure to secure the testimony of a vocational expert was error. Foote, 67 F.3d a t 1559 (when non-exertional limitations are alleged, "the preferred method of demonstrating that the claimant can perform specific work is through the testimony of a vocational expert"); C h e ste r, 792 F.2d at 132 (The burden of showing by substantial evidence that a person who can

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n o longer perform his former job can engage in other substantial gainful activity is in almost all c a se s satisfied only through the use of vocational expert testimony.). Not surprisingly, other c o u rts have reached the same conclusion. See Diamond v. Sec. Health and Human Serv., ___ F .2 d ___, 1994 WL 659118 *2 (6 th Cir. 1994); Sanders v. Sullivan, 983 F.2d 822, 823-824 (8 th C ir. 1992). Relying on SSR 96-4p and 96-8p, the United States makes the extraordinary assertion th a t pain is merely a symptom and thus, "not intrinsically exertional or nonexertional." (Mem. in Supp. of Comm'r Dec., at 7). The Commissioner is painfully and patently wrong.4 In this c irc u it, "[p]ain is clearly a non-exertional impairment that limits the range of jobs the claimant c a n perform." Foote, 67 F.3d at 1559; Walker, 826 F.2d at 1003 ("Pain is a nonexertional im p air m e n t. " ). See also Phillips v. Barnhart, 357 F.3d 1232, 1242 fn 11 (11 th Cir. 2004) (" N o n e x e rtio n a l limitations or restrictions affect an individual's ability to meet the other d e m a n d s of jobs and include . . . pain limitations. . .") Furthermore, in this circuit, pain itself c a n be disabling. See Foote, 67 F.3d at 1561; Marbury v. Sullivan, 957 F. 2d 837, 839 (11 th Cir. 1 9 9 2 ). The general rule is that after determining the claimant's RFC and ability to return to past relevant work, the ALJ may use the grids to determine whether other jobs ex ist in the national economy that a claimant is able to perform. However, " [ e]x c lu s iv e reliance on the grids is not appropriate either when [the] claimant is u n a b le to perform a full-range of work at a given residual functional level or w h e n a claimant has non-exertional impairments that significantly limit basic w o r k skills.

The court notes that this is not the first time the Commissioner has mistakenly relied on this assertion. See Hobbs v. Astrue, Civ. Act. No. 1:07cv1099-CSC (M.D. Ala. 2008).

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P h illip s , 357 F.3d at 1242 (emphasis and alteration in original and quoting Francis v. Heckler, 7 4 9 F.2d 1562, 1566 (11 th Cir. 1985)). Consequently, because the ALJ concluded that Trusty su f f e rs from a severe non-exertional impairment, his reliance on the grids and his failure to s e c u re the testimony of a vocational expert were erroneous as a matter of law. Foote, 67 F.3d a t 1559; Chester, 792 F.2d at 132; Phillips, 357 F.3d at 1243-44. V. Conclusion A c c o r d in g ly, for the reasons as stated and for good cause, it is ORDERED that the decision of the Commissioner be and is hereby REVERSED and R E M A N D E D to the Commissioner for further proceedings consistent with this opinion. It is f u rth e r O R D E R E D that, in accordance with Bergen v. Comm'r of Soc. Sec., 454 F.3d 1273, 1278 f n . 2 (11 th Cir. 2006), the plaintiff shall have sixty (60) days after he receives notice of any a m o u n t of past due benefits awarded to seek attorney's fees under 42 U.S.C. § 406(b). See also B litc h v. Astrue, 261 Fed. Appx. 241, 242 fn.1 (11 th Cir. 2008). A separate order will be entered. D o n e this 17 th day of February, 2009.

/s/Charles S. Coody CHARLES S. COODY U N IT E D STATES MAGISTRATE JUDGE

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