Williams v. Astrue (CONSENT)

Filing 22

MEMORANDUM OPINION AND ORDER that defendant's 20 Motion to Alter or Amend Judgment be and is hereby DENIED as further set out in the opinion and order. Signed by Honorable Charles S. Coody on 7/15/2010. (Attachments: # 1 Civil Appeals Checklist)(dmn) [Modified on 7/15/2010 to include text, "as further set out in the opinion and order."-DMN]

Williams v. Astrue (CONSENT)

Doc. 22

IN THE DISTRICT COURT OF THE UNITED STATES F O R THE MIDDLE DISTRICT OF ALABAMA E A S T E R N DIVISION J E R O M E WILLIAMS, JR., P l a i n t if f , v. M IC H A E L J. ASTRUE, C O M M IS S IO N E R OF SOCIAL S E C U R IT Y , D e fe n d a n t. ) ) ) ) ) ) ) ) ) ) )

C I V . ACTION NO. 3:09cv238-CSC (W O )

M E M O R A N D U M OPINION and ORDER O n May 12, 2010, this court ordered that the decision of the Commissioner be re v e rse d and this case be remanded for an award of supplemental security income benefits p u rs u a n t to Title XVI, 42 U.S.C. § 1381, et seq. On June 4, 2010, the Commissioner filed a motion to alter or amend judgment pursuant to FED.R.CIV.P. 59(e). The Commissioner asserts that this court erred in determining that Williams meets the th ird prong of Listing 1.08. Specifically, the Commissioner contends that the court failed to c o n sid e r the definition of "loss of function" in the Musculoskeletal Listings when d e te rm in in g that the medical records establish that "such major function was not restored or e x p e cte d to be restored within 12 months of onset. 20 C.F.R. Pt. 404, Subpt. P, App.1 § 1.08 (2 0 0 9 )." Williams argues that Listing 1.08 does not specifically refer to "loss of function" a n d therefore it would be "manifestly unfair . . . to read into Listing 1.08 something other th a n the plain meaning of the section." (Doc. No. 21, Pl's Response, p. 2.)

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S e c tio n 1.08 provides: S o ft tissue injury (e.g., burns) of an upper or lower extremity, trunk, or fa c e and head, under continuing surgical management, as defined in 1.00M, d ire c te d toward the salvage or restoration of major function, and such major fu n c tio n was not restored or expected to be restored within 12 months of onset. M a jo r function of the face and head is described in 1.00O. 2 0 C.F.R. Pt. 404, Subpt. P, App. 1 § 1.08 (2009). T h e Commissioner asks this court to apply the definition of "loss of function" as set fo rth in § 1.00B(2)(a) and (b) when deciding whether "such major function was not restored o r expected to be restored within 12 months of onset" as set forth in the third prong of § 1.08. T h e Commissioner maintains that, because § 1.00B(2)(a) defines "loss of function" as the " in a b ility to ambulate effectively on a sustained basis" and § 1.00B(2)(b) further defines " in e ffe c tiv e ambulation" as "having insufficient lower extremity functioning . . . to permit in d e p e n d en t ambulation without the use of a hand-held assistive device that limits the f u n c tio n in g of both upper extremities," this court should have considered whether Williams' " a b ility to effectively ambulate" was not restored or expected to be restored within twelve m o n th s of onset. In statutory construction, the plain meaning of a statute controls unless the language is ambiguous or leads to absurd results. See United States v. McLymont, 45 F.3d 400, 401 (1 1 th Cir. 1995). However, the "plain-meaning rule should not be applied to produce a result w h ic h is actually inconsistent with the policies underlying the statute." Bailey v. USX Corp., 8 5 0 F.2d 1506, 1509 (11 th Cir. 1988). The principles of statutory construction apply to fe d e ra l regulations. See, e.g., Environmental Defense v. Duke Energy Corporation, 549 U.S. 2

5 6 1 (2007) (applying rules of statutory construction to the Clean Air Act and the E n v iro n m en tal Protection Agency's regulations, the New Source Performance Standards). T h e court declines to read into § 1.08 a requirement that is not there. Within the c a te g o ry of musculoskeletal impairments, §§ 1.02A, 1.03, 1.04C, 1.05B, 1.05C, and 1.06B a ll specify the "inability to ambulate effectively, as defined in 1.00B(2)(b)" as a requirement. S e c tio n 1.08, however, requires only that "such major function was not restored or expected to be restored within 12 months of onset." When reading the listings of musculoskeletal im p a irm e n ts together, it is clear that a "loss of function" requirement, which is defined as an " in a b ility to ambulate effectively," and "a major function ... not restored" are separate c o n c ep ts . Thus, the court will give the third prong of § 1.08 its plain and ordinary meaning. A s previously discussed in this Court's opinion, the medical records establish that W illiam s had numerous surgical procedures after suffering a severe crush injury while w o rk in g in a factory, that he has endured countless infections, swelling, edema and other p ro b le m s and sought treatment on an ongoing basis for these steadily worsening medical c o m p lic a tio n s since the date of his initial surgery in June 2005. His own physicians have re p e ate d ly advised that his condition may never improve. This court therefore concludes that " s u c h major function was not restored or expected to be restored within 12 months of onset." 2 0 C.F.R. Pt. 404, Subpt. P, App. 1 § 1.08 (2009). Consequently, Williams meets § 1.08 of th e Listing of Impairments.1

The Commissioner does not dispute that Williams meets the first two prongs of Listing 1.08. ( D o c . No. 20, p. 3.)

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T h e Commissioner also argues that this court erred in determining that the vocational e x p e rt's testimony demonstrates that Williams is unable to perform work. Specifically, the C o m m is s io n e r contends that the hypothetical questions posed by plaintiff's counsel to the v o c a tio n a l expert included limitations the ALJ found to be not credible. In its Opinion, the c o u r t determined as follows: . . . Furthermore, the vocational expert testified that a p e rso n with Williams' limitations would be unable to perform w o rk . During the hearing, the following discussion occurred: C o u n s e l: M r. Tilton, if you assume a job applicant w ith Mr. Williams' background, job h is to ry , education level, the fact that he w o u ld likely need to elevate his leg, and t h e fact that his, his wound care specialist h a s, has stated in the records that he is p e rio d ic a lly going to have infection and/or s w e llin g which is going to likely involve trip s to the emergency room. Assuming s o m e o n e with those requirements or lim ita tio n s , let's put it that way, would that p e rs o n still be able, in your opinion, to p e rfo r m the job duties and be gainfully as a credit card interviewer, production in s p e c to r, or escort drive?

V o ca tio n al Expert: No, sir. (R . 44.) The medical records indicate that Williams has suffered fro m repeated infections, edema, and swelling which have re su lte d in several visits to medical specialists and hospital e m e r g e n c y rooms. Consequently, Williams would likewise be e n title d to benefits based on the medical evidence and the te s tim o n y of the vocational expert. (Doc. No. 16, pp. 11-12.)

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A lth o u g h the Commissioner argues that this court's determination concerning the v o c a tio n a l expert's testimony is incorrect because the ALJ found the limitations as posed by p la in tiff's counsel to be not credible, nothing in the ALJ's analysis indicates that the C o m m issio n e r properly rejected or otherwise discounted the medical specialists' findings that W illia m s may need to elevate his leg on occasion and will periodically suffer from infections a n d /o r swelling which will likely involve trips to the emergency room. Because Williams meets the requirements of Listing 1.08 and the medical evidence an d the testimony of the vocational expert establish Williams is unable to work, the court c o n c lu d e s that the Commissioner's motion to alter or amend judgment is due to be denied. A c c o rd in g ly , it is O R D E R E D that the defendant's motion to alter or amend judgment (Doc. No. 20) be a n d is hereby DENIED. D o n e this 15 th day of July, 2010.

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

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