Smith v. Astrue

Filing 26

MEMORANDUM AND OPINION entered, Based on review of the entire record, the Court finds that the Commissioner's decision is not supported by substantial evidence. Therefore, it is ORDERED that the action be REVERSED and REMANDED to the Social Security Administration for further proceedings, as further set out. Signed by Magistrate Judge Bert W. Milling, Jr on 12/19/2011. (clr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
DARRY LANELL SMITH,

:
:
Plaintiff,
:
:
vs.
:
:
MICHAEL J. ASTRUE,
:
Commissioner of Social Security,:
:
Defendant.
:

CIVIL ACTION 11-0203-M

MEMORANDUM OPINION AND ORDER

In this action under 42 U.S.C. §§ 405(g) and 1383(c)(3),
Plaintiff seeks judicial review of an adverse social security
ruling which denied claims for disability insurance benefits and
Supplemental Security Income (hereinafter SSI) (Docs. 1, 17).
The parties filed written consent and this action has been
referred to the undersigned Magistrate Judge to conduct all
proceedings and order the entry of judgment in accordance with
28 U.S.C. § 636(c) and Fed.R.Civ.P. 73 (see Doc. 23).
argument was waived in this action (Doc. 25).

Oral

Upon

consideration of the administrative record and the memoranda of
the parties, it is ORDERED that the decision of the Commissioner
be REVERSED and that this action be REMANDED for further
proceedings not inconsistent with the Orders of the Court.
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This Court is not free to reweigh the evidence or
substitute its judgment for that of the Secretary of Health and
Human Services, Bloodsworth v. Heckler, 703 F.2d 1233, 1239
(11th Cir. 1983), which must be supported by substantial
evidence.

Richardson v. Perales, 402 U.S. 389, 401 (1971).

The

substantial evidence test requires "that the decision under
review be supported by evidence sufficient to justify a
reasoning mind in accepting it; it is more than a scintilla, but
less than a preponderance."

Brady v. Heckler, 724 F.2d 914, 918

(11th Cir. 1984).
At the time of the administrative hearing, Plaintiff was
forty-nine years old, had completed an eleventh-grade education
(Tr. 44), and had previous work experience as a car detailer
(Tr. 47).

Smith alleges disability due to a gunshot wound to

the dominant upper extremity (Doc. 17 Fact Sheet).
The Plaintiff filed protective applications for disability
insurance and SSI benefits on August 5, 2008 (Tr. 122-28; see
Tr. 10).

Benefits were denied following a hearing by an

Administrative Law Judge (ALJ) who determined that although he
was not capable of performing his past work, Smith was capable
of performing specified light work jobs (Tr. 10-20).

Plaintiff

requested review of the hearing decision (Tr. 6) by the Appeals
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Council, but it was denied (Tr. 1-5).
Plaintiff claims that the opinion of the ALJ is not
supported by substantial evidence.
that:

Specifically, Smith alleges

(1) The ALJ made improper findings regarding his residual

functional capacity (hereinafter RFC); and (2) the ALJ did not
pose a complete and proper hypothetical question to the
Vocational Expert (hereinafter VE) (Doc. 17).
responded to—and denies—these claims (Doc. 20).

Defendant has
The relevant

medical evidence of record follows.
In a report dated December 18, 1990, from St. Joseph
Medical Center in Ft. Wayne, Indiana, Dr. Jeffrey Nipper removed
sutures after a distal radial bone graft reconstruction, with
DCP plate placement, following a gunshot wound to Smith’s right
forearm (Tr. 252-53).

The splint was removed and the surgical

incision was noted to be well-healed.

Stability of the distal

radial reconstruction was intact.

The wrist range of motion

(hereinafter ROM) was as follows:

“Radial deviation 0, ulnar

deviation 15 degrees, wrist flexion 30 degrees, wrist extension
0 degrees.

MP ranges of motion 1-5 0 to 30 degrees, PIP joint

from 2-5 is 5 to 80 degrees, DIP from 2-5 is 5 to 70 degrees and
IP joint of the thumb is 5 to 30 degrees” (Tr. 253).

Nipper

noted that this was loss of “a good deal of motion” (id.).
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Plaintiff was encouraged to continue with passive ROM, but to
force the motions a bit at the digits.

The doctor indicated

doubt whether wrist function could ever be salvaged.

On January

22, 1991, Dr. Howard W. Sharf noted no change in the finger ROM
(Tr. 255).
No more medical evidence is available concerning this
impairment until August 5, 2008 when Dr. H. John Park, an
Orthopedic, noted that Smith had trouble making a fist though he
was able to flex his thumb and finger (Tr. 216-17; see generally
Tr. 216-30).

Plaintiff was unable “to oppose the thumb and

little finger.
inches.

He [had] a significant flexion contracture of his IP

and DIP joint.
216).

Fingertip to palm distance [was] about 1.5

He [had] significant thenar muscle atrophy” (Tr.

Park noted that Smith could only actively flex his wrist

about twenty degrees.

It was the Orthopedic’s opinion that

Plaintiff “certainly has almost 100% impairment rating regarding
use of his right hand, forearm and wrist” (Tr. 217).

He further

stated that “within reasonable medical certainty, [Smith was]
disabled as far as the use of his right hand and right arm”
(id.).

Though Dr. Park held out the possibility of

reconstructive surgery, Plaintiff was not interested.
On October 7, 2008, Dr. Marcus Whitman indicated that
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Plaintiff could perform light work (Tr. 214).

This is the

complete substance of this Social Security Administration
(hereinafter SSA)- generated form.
On January 12, 2009, a person named Sarah Singleton,
working for the SSA, completed a physical RFC assessment which
indicated that Plaintiff was capable of occasionally lifting
twenty pounds, frequently lifting ten pounds, standing or
walking about six hours in an eight-hour day, and sitting about
six hours during an eight hour day (Tr. 185; see generally Tr.
184-91).

Singleton went on to suggest that Plaintiff could only

occasionally climb stairs, stoop, kneel, crouch, and crawl and
that he could never climb a ladder (Tr. 186); she also indicated
that Plaintiff could never use his right hand for reaching in
any direction or for gross or fine manipulation (Tr. 187).
In his determination, the ALJ “assigned some weight to the
claimant’s treating physician, Dr. Park that the claimant has
sustained injury to his right hand, forearm and wrist based on a
prior gunshot wound; however, there are no diagnostic tests to
substantiate the current diagnosis or prognosis of a 100%
impairment rating” (Tr. 18).

The ALJ went on to explain that he

had discounted Park’s conclusions because he had relied on “the
claimant’s medical record from 1990, a physical examination and
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the claimant’s subjective complaints” (id.) (emphasis added).
The ALJ further noted that the opinion was based on a single
examination.
The ALJ further stated as follows:

“A Physical Summary

form completed by state agency medical consultant Marcus
Whitman, M.D., indicated the claimant could perform a range of
light work.

(Exh. 6F)

I agree with this assessment and find

the claimant is capable of light work activity with the
restrictions noted above” (Tr. 18).
the report by Sarah Singleton.

The ALJ did not acknowledge

This concludes the relevant

medical evidence.
Smith claims that the ALJ made improper findings regarding
his RFC (Doc. 17, pp. 4-7).

The ALJ is responsible for

determining a claimant=s RFC.

20 C.F.R. ' 404.1546 (2011).

The ALJ determined that Plaintiff was capable of performing
a reduced range of light work.

More specifically, the ALJ found

as follows:

[T]he claimant can lift or carry up to 20
pounds occasionally and 10 pounds
frequently; limited use of right hand for
simple grasping, fine manipulation and
fingering; limited reaching overhead,
particularly with right arm and shoulder;
occasional climbing ramps and stairs,
balancing, stooping, kneeling, crouching,
and crawling. No unprotected heights and
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hazardous machinery. The claimant has no
visual or communicative limitations.
Unskilled work.

(Tr. 14).

The Court notes that this RFC mirrors the RFC

completed by Sarah Singleton (cf. Tr. 184-91), a report
completed by non-medical personnel working for the SSA that was
not even acknowledged by the ALJ.

The Government correctly

notes that the ALJ cannot rely on this evidence in making his
decision (Doc. 20, pp. 8-9) (citing Program Operations Manual
System DI214510.050C, 2001 WL 193365).
The Court notes that the ALJ did rely, however, on the
opinion of Dr. Whitman, a non-examining physician whose only
contribution to the record was a statement that Plaintiff could
perform light work.

“This Court has held on a number of

occasions that the Commissioner's fifth-step burden cannot be
met by a lack of evidence, or by the residual functional
capacity assessment of a non-examining, reviewing physician, but
instead must be supported by the residual functional capacity
assessment of a treating or examining physician.”

Coleman v.

Barnhart, 264 F.Supp.2d 1007, 1010 (S.D. Ala. 2003).

The ALJ’s

conclusion that Plaintiff is capable of performing jobs which
exist in the national economy based on the opinions of a nonexamining physician is not supported by substantial evidence.
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The Court understands the Government’s argument that the
ALJ determines the RFC and that he can reject opinions that he
does not think are supported by substantial evidence.
Nevertheless, for the ALJ to rely on the opinion of a nonexamining physician whose only finding is that Smith can perform
light work, while rejecting the opinion of the only examining
physician, a specialist, who the ALJ himself referred to as the
treating physician, fails to meet the requirement of Perales and
Brady.
Based on review of the entire record, the Court finds that
the Commissioner's decision is not supported by substantial evidence.

Therefore, it is ORDERED that the action be REVERSED and

REMANDED to the Social Security Administration for further
administrative proceedings consistent with this opinion, to
include, at a minimum, a supplemental hearing for the gathering
of evidence regarding Smith’s ability to use his right hand and
arm.

For further procedures not inconsistent with this Order,

see Shalala v. Schaefer, 509 U.S. 292 (1993).

Judgment will be

entered by separate Order.
DONE this 19th day of December, 2011.

s/BERT W. MILLING, JR.
UNITED STATES MAGISTRATE JUDGE
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