Smith v. Astrue
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
DARRY LANELL SMITH,
MICHAEL J. ASTRUE,
Commissioner of Social Security,:
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).
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.
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
Richardson v. Perales, 402 U.S. 389, 401 (1971).
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
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
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).
requested review of the hearing decision (Tr. 6) by the Appeals
Council, but it was denied (Tr. 1-5).
Plaintiff claims that the opinion of the ALJ is not
supported by substantial evidence.
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).
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
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).
noted that this was loss of “a good deal of motion” (id.).
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.
22, 1991, Dr. Howard W. Sharf noted no change in the finger ROM
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
Plaintiff was unable “to oppose the thumb and
He [had] a significant flexion contracture of his IP
and DIP joint.
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).
stated that “within reasonable medical certainty, [Smith was]
disabled as far as the use of his right hand and right arm”
Though Dr. Park held out the possibility of
reconstructive surgery, Plaintiff was not interested.
On October 7, 2008, Dr. Marcus Whitman indicated that
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.
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
the claimant’s subjective complaints” (id.) (emphasis added).
The ALJ further noted that the opinion was based on a single
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
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
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
[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
hazardous machinery. The claimant has no
visual or communicative limitations.
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.”
Barnhart, 264 F.Supp.2d 1007, 1010 (S.D. Ala. 2003).
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.
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
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
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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