Poole v. Astrue (CONSENT)

Filing 16

MEMORANDUM OPINION that this case will be reversed and remanded to the Commissioner for further proceedings consistent with this opinion. A separate order will be entered. Signed by Honorable Charles S. Coody on 2/5/2010. (br, )

IN THE DISTRICT COURT OF THE UNITED STATES F O R THE MIDDLE DISTRICT OF ALABAMA E A S T E R N DIVISION S ID N E Y POOLE, 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. 3:08cv900-CSC

M E M O R A N D U M OPINION I . Introduction T h e plaintiff applied for supplemental security income benefits under Title XVI of the S o c i a l Security Act, 42 U.S.C. § 1381 et seq. alleging that he was unable to work because o f a disability. His application was denied at the initial administrative level. The plaintiff t h e n 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 o f the Commissioner of Social Security (Commissioner).1 See Chester v. Bowen, 792 F.2d 1 2 9 , 131 (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 2 8 U.S.C. § 636(c)(1) and M.D. Ala. LR 73.1. Based on the court's review of the record in th is case and the briefs of the parties, the court concludes that the decision of the C o m m is s io n e r should be reversed and remanded to the Commissioner for further p ro c e e d in g s . II. 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 d e ter m in a b le 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 o f not less than 12 months . . . 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 ) Is the person presently unemployed? (2 ) Is the person's impairment severe? (3 ) Does 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? (4 ) Is the person unable to perform his or her former occupation? (5 ) 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 a n sw e r to any question, other than step three, leads to a determination of "not

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.

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d is a b le d ." M c D a n ie l v. Bowen, 800 F.2d 1026, 1030 (11 th Cir. 1986).3 T h e standard of review of the Commissioner's decision is a limited one. This court m u s t find the Commissioner's decision conclusive if it is supported by substantial evidence. 4 2 U.S.C. § 405(g); Graham v. Apfel, 129 F.3d 1420, 1422 (11 th Cir. 1997). "Substantial e v id e n c e is more than a scintilla, but less than a preponderance. It is such relevant evidence a s a reasonable person would accept as adequate to support a conclusion." Richardson v. P e ra le s, 402 U.S. 389, 401 (1971). A reviewing court may not look only to those parts of th e record which supports the decision of the ALJ but instead must view the record in its e n t ir e ty and take account of evidence which detracts from the evidence relied on by the ALJ. H ills m a n v. Bowen, 804 F.2d 1179 (11 th Cir. 1986). [ T h e court must] . . . scrutinize the record in its entirety to determine the re a so 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 c lu d in g determination of the proper standards to be applied in evaluating c la im s . W a lk e r v. Bowen, 826 F.2d 996, 999 (11 th Cir. 1987). I I I . The Issues A . Introduction. Plaintiff Sidney Poole ("Poole") was 50 years old at the date of o n s e t of disability and 56 years old at the time of the hearing before the ALJ. (R. 153 &

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 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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1 5 7 ). He has a college education.4 (R. 158-59). Poole alleges that he is unable to work due in part to pain in his knees and back. (R. 162). Following a hearing, the ALJ concluded that the plaintiff had severe impairments of " d e g e n e ra tiv e arthritis of the left knee, chronic obstructive pulmonary disease, and asthma." (R . 25). The ALJ concluded that Poole's prior work experience includes light, unskilled w o rk as a cafeteria attendant5 and very heavy, unskilled work as a roofer's helper. (R. 23). T h e ALJ further concluded that the plaintiff could perform his past relevant work as a c a f e te ria attendant. (Id.). Nonetheless, out of an abundance of caution, the ALJ proceeded to the fifth step of the sequential analysis. Relying on the testimony of the vocational expert, th e ALJ concluded that the plaintiff was not disabled because he had the residual functional c a p a c ity to perform work that exist in significant numbers in the national economy. (Id.). B. Plaintiff's Claims. As stated by the plaintiff, he presents the following two issues f o r the Court's review. W h e th e r substantial evidence supports the Commissioner's denial of Mr. P o o le 's disability claim where the Administrative Law Judge: A. Im p ro p e rly rejected the opinions of the consultative examiner s ta te agency consulstant (sic); and F a iled to make a proper residual functional capacity

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The plaintiff testified that he obtained his college degree in business from Mercer University while he was incarcerated. During two administrative hearings, the vocational expert testified that Poole's prior work experience as a commercial cleaner in a restaurant was medium, unskilled work. (R. 136 & 142).
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d e ter m in a tio n and therefore failed to pose a proper hypothetical. (P l's Br. in support of Compl., at 1-2). I V . Discussion T h e plaintiff raises several 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 a n d substantial evidence. See Bridges v. Bowen, 815 F.2d 622 (11 th Cir. 1987). However, th e court pretermits discussion of the plaintiff's specific arguments because the court c o n c lu d e s that the ALJ erred as a matter of law, and, thus, this case is due to be remanded f o r further proceedings. S o m etim es the court wonders whether the administrative record which the court re v iew s is the same record the ALJ reviewed. During the administrative hearing, Poole te stif ie d that he has been using a cane for "about two years," as prescribed by his treating p h ys ic ia n . (R. 162). He has pain in his knees and his back, his knees swell, (R. 162-63), and th a t he is unable to stand for over twenty (20) minutes. (R. 133). While incarcerated, Poole w a s excused from work duty due to his back and leg pain, and he was assigned a low bunk. (R . 163-64). Poole further testified that he cannot bend or stoop. (R. 169). The medical evidence plainly establishes that the claimant suffers from back and knee p ro b le m s . For example, an cervical spine x-ray on May 2, 2001, indicated "[s]light d e g e n era tiv e disk disease C4, C5. No fracture or dislocation. Ligament calcification to the C 4 /C 5 , C5/C6, C6/C7 disk spaces." (R. 178). An x-ray of the spine on October 3, 2002, 5

re v e ale d "narrowing of the L4-5 disk space." (R. 277). X-rays on September 8, 2006 in d ic a te d "C4 through C6 spondylosis" and "small anterior and right lateral osteophytes at th e T7 through T12 levels." (R. 315). A lumbar spine x-ray also revealed (1 ) (2 ) (3 ) (4 ) C a lc if ic a tio n of abdominal aorta without evidence of aneurysm. D e g e n era tiv e disc disease at L4-5 without reactive sclerosis involving th e adjacent end plates. P o s te rio r hypertrophic spurring of inferior L4 most likely producing a m ild acquired spinal stenosis at L4. M ild thinning of L5-S1 interspace most likely representing mild d e g e n era tiv e disc disease.

(R . 316). Despite Poole's testimony and the objective medical evidence in the record, the ALJ in his analysis of the evidence simply ignores evidence that Poole suffers from degenerative d is c disease and chronic back pain. Although the ALJ mentions Poole's 2002 x-rays and ev iden ce of "some disk space narrowing," (R. 18), he makes no findings regarding Poole's b a c k condition or his pain related to this condition in his disability determination. The ALJ m u st conscientiously probe into, inquire of and explore all relevant facts to elicit both f a v o ra b le and unfavorable facts for review. Cowart v. Schweiker, 662 F.2d 731, 735-36 (11 th C ir. 1981). The ALJ's recitation of some of the medical evidence is simply not a substitute fo r articulating clear findings regarding the claimant's impairments and abilities to perform w o rk . The ALJ must also state, with sufficient specificity, the reasons for his decision re f e re n c in g the plaintiff's impairments, and the court must scrutinize the record in its entirety to determine the reasonableness of the ALJ's decision. See Walker, 826 F.2d at 999. 6

C o n se q u e n tly, while it is plain that the plaintiff suffers from degenerative disc disease in his b a c k , what is not plain is the effect of that condition, and its attendant pain, on Poole's ability to work. Thus, the court is unable to conclude that the ALJ's decision that Poole is not d is a b le d is supported by substantial evidence. Furthermore, the ALJ failed to properly develop the record regarding Poole's p ro b le m s with his right leg and knee. At the request of the Social Security Administration, P o o le had a physical consultative evaluation by Dr. Daryl A. Ellis ("Ellis") on August 22, 2 0 0 2 . (R. 266-68). During that evaluation, Dr. Ellis reported that Poole's h ip flexion is significantly diminished with right hip flexion perhaps to a b o u t 45 degrees, left hip flexion about the same. External rotation, with a g re a t deal of pain is to about 30 degrees on the right, probably about 40 d e g re e s on the left. H is knee exam shows him to have significant valgus deformity with m a rk e d tenderness on palpation of the medial and lateral epicondyles of both k n e e s , right greater than left. There is no palpable effusion but there is s yn o v i a l thickening noted on the right side. Range-of-motion of the knees: r ig h t knee he can flex probably to about 80 degrees. Extension is not c o m p le te , probably about 5 degrees. Left knee: he has complete extension. F le x io n probably to about 90 degrees. Ankles: no significant swelling alth o u g h he's tender on palpation of the medial and lateral malleolus. There is full range-of-motion noted around the ankles. * * *

His gait is significantly ataxic. He walks in kind of a stooped position, v e r y wide-based, kind of a shuffling, limping gait. He does not use an a s s is tiv e device but probably could use one based upon the way that he walks. A S S E S S M E N T : This patient demonstrates objective and subjective signs c o n s is te n t with disability. I don't believe that he's really ever gotten a n y th in g in terms of Re-Hab or a shot at any kind of significant treatment

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f o r his ailments. * * *

W e did a right knee film, AP and lateral, which showed positive marked join t space narrowing of the medical epicondyle of that knee with s ig n ific a n t osteophyte formation. R E C O M M E N D A T IO N : This patient is significantly disabled. Unless we c a n get him onto a treatment and Rehabilitation Program, he should be re ce iv in g Disability. (R . 267-68) (emphasis added). In addition, a hip x-ray on October 3, 2002, revealed "[l]ateral osteophytes . . . on the s u p e rio r acetabular margin." (R. 279). Despite Dr. Ellis' assessment and the x-ray of his hip, th e ALJ makes no findings regarding Poole's right knee or his pain related to this condition in his disability determination.6 Although the ALJ references Dr. Ellis' report in his re c ita tio n of the medical evidence, the ALJ completely ignores his report when discussing P o o le 's impairments or his residual functional capacity to perform work. The ALJ is not free to simply reject a physician's opinion without reason, nor may he pick and choose between t h e opinions selecting those portions which support his ultimate conclusion. Because the A L J ignores Dr. Ellis' report, he ignores Dr. Ellis' assessment that Poole is "significantly d is a b le d ." (R. 268). An administrative law judge has a duty to develop a full and fair record. Kelley v. H e c k le r , 761 F.2d 1538 (11 th Cir. 1985). In fulfilling his duty to conduct a full and fair
In his decision the ALJ mentions that the plaintiff testified that his most severe medical problem was his "knees." (R. 22).
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in q u iry, the administrative law judge is not required to order a consultative examination u n le ss the record establishes that such an examination is necessary to enable the a d m in is tra tiv e law judge to render a decision. Holladay v. Bowen, 848 F.2d 1206, 1210 (11 th C ir . 1988). Where a consultative evaluation is needed to make an informed decision, it is e rr o r for an ALJ not to order such an evaluation. Reeves v. Heckler, 734 F.2d 519 (11 th Cir. 1 9 8 4 ). The court concludes that the Commissioner inadequately developed the record in this c a se by failing to further inquire into the plaintiff's right knee impairment or order additional e v a lu a tio n s to clarify the status of plaintiff's right knee. As a result of the ALJ's failure to develop the record regarding the condition of P o o le 's right knee, there are inconsistencies in the evidence concerning the plaintiff's right k n e e and the effect of that condition on Poole's ability to work. When there is a conflict, in c o n sis ten c y or ambiguity in the record, the ALJ has an obligation to resolve the conflict, g iv in g specific reasons supported by the evidence as to why he accepted or rejected one o p in i o n regarding the plaintiff's capacity for work over another. In this case, the ALJ chose to rely on evidence that Poole's degenerative joint disease of the left knee was not disabling a n d ignored the conflicting evidence that suggests that suggests Poole may be disabled due to his right knee condition. (R. 20). An ALJ may not arbitrarily pick and choose facts from th e medical evidence to support his conclusion without articulating specific, well supported re a s o n s for crediting some evidence while discrediting other evidence. Marbury v. Sullivan, 9 5 7 F.2d 837 (11 th Cir. 1992). "In the absence of such a statement, it is impossible for a

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re v ie w in g court to determine whether the ultimate decision on the merits is rational and s u p p o rte d by substantial evidence." Cowart, 662 F.2d at 735. "Failure to do so requires the c a se be vacated and remanded for the proper consideration." Hudson v. Heckler, 755 F.2d 7 8 1 , 785 (11 th Cir. 1985). Without developing the record more fully regarding both of the p lain tiff 's knees, the ALJ could not make an informed decision based on the record before h im , and thus, his decision is not supported by substantial evidence. Finally, the ALJ determined that Poole has "the residual functional capacity to lift and c a rry 50 pounds occasionally and lesser amounts more frequently and would be capable of p e rf o rm in g work that provided for a sit/stand option or otherwise engage in work that inv o lves a change in position between sitting, standing and walking." (R. 20).

U n f o rtu n a te ly, the ALJ makes no more specific findings regarding Poole's residual f u n c tio n a l capacity. Consequently, the court is unable to determine what evidence the ALJ re lie d upon to reach his decision, and whether that decision is supported by substantial e v id e n c e . For these reasons, the court concludes that the Commissioner erred as a matter of law, a n d that the case should be remanded for further proceedings regarding the severity of the p la in tif f 's degenerative disc disease, his right knee condition coupled with his attendant pain, h is left knee condition,7 and the effect of these conditions on his ability to work. Even if the A L J concludes that Poole's back and right knee conditions are not severe impairments, he
In 2006 an x-ray of Poole's left knee showed "marked degenerative arthropathy of the patellofemoral and medial joint compartments . . ." (R. 314).
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m u s t still consider every impairment alleged by the plaintiff and determine whether the a lleg e d impairments are sufficiently severe - either singularly or in combination - to create a disability. See Gibson v. Heckler, 779 F.2d 619, 623 (11 th Cir. 1986). All of the plaintiff's i m p a irm e n ts must be considered in combination, even when the impairments considered s e p a ra te ly are not severe. Hudson, 755 F.2d at 785. In this case, it is clear that the ALJ fa iled to meet his burden with respect to evaluating all the evidence of the plaintiff's im p a irm e n ts in combination. Thus, doubt is necessarily cast upon the ALJ's conclusion that th e plaintiff is not disabled. V . Conclusion A c c o rd in g ly, this case will be reversed and remanded to the Commissioner for further p ro c e ed in g s consistent with this opinion. A separate order will be entered. D o n e this 5 th day of February, 2010.

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

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