Huber v. Social Security Administration
MEMORANDUM AND ORDER reversing the Commissioner's decision and remanding it for action consistent with this opinion. This is a sentence four remand within the meaning of 42 U.S.C. § 405(g) and Melkonyan v. Sullivan, 501 U.S. 89 (1991). Signed by Magistrate Judge Beth Deere on 3/8/10. (hph)
IN THE UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF ARKANSAS W E S T E R N DIVISION B R IA N RAY HUBER v. 4:08CV04224 BD DEFENDANT P L A IN T IF F
M IC H A E L J. ASTRUE, Commissioner, Social Security Administration, M E M O R A N D U M AND ORDER
P la in tif f , Brian Ray Huber, has appealed the final decision of the Commissioner of th e Social Security Administration to deny his claim for Disability Insurance benefits and S u p p le m e n ta l Security Income, based on disability. Both parties have submitted appeal b rie f s and the case is ready for decision.1 A f te r consideration of the record as a whole, the Court finds that the decision of the C o m m is sio n e r is not supported by substantial evidence and that the case should be re m a n d e d . I. Procedural History A f te r conducting an administrative hearing, the Administrative Law Judge ("ALJ") c o n c lu d e d that Plaintiff had not been under a disability within the meaning of the Social S e c u rity Act at any time through August 5, 2008, the date of his decision. (Tr. 50-51) On O c to b e r 30, 2008, the Appeals Council received and considered additional evidence but d e n ie d Plaintiff's request for a review of the ALJ's decision, making the ALJ's decision the f in a l decision of the Commissioner. (Tr. 1-4) Plaintiff then filed his complaint initiating th is appeal. (Docket #2)
The parties have consented to the jurisdiction of the Magistrate Judge. (Docket entry #5)
S ta n d a r d of Review T h e Court's function on review is to determine whether the Commissioner's decision
is supported by substantial evidence on the record as a whole and free of legal error. Slusser v . Astrue, 557 F.3d 923, 925 (8th Cir. 2009); Long v. Chater, 108 F.3d 185, 187 (8th Cir. 1 9 9 7 ); see also 42 U.S.C. §§ 405(g), 1383(c)(3). Substantial evidence is such relevant e v id e n c e as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Reynolds v. Chater, 82 F.3d 254, 257 (8th C ir. 1996). In assessing the substantiality of the evidence, the Court must consider evidence that d e tra c ts from the Commissioner's decision as well as evidence that supports it; the Court m a y not, however, reverse the Commissioner's decision merely because substantial evidence w o u ld have supported an opposite decision. Sultan v. Barnhart, 368 F.3d 857, 863 (8th Cir. 2 0 0 4 ); Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993). "Disability" is the "inability to engage in any substantial gainful activity by reason of a n y medically determinable 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 of not less th a n 12 months." 42 U.S.C. §§ 423(d)(1)(A); 1382(a)(3)(A). A "physical or mental im p a irm e n t" is "an impairment that results from anatomical, physiological, or psychological a b n o rm a litie s which are demonstrable by medically acceptable clinical and laboratory d ia g n o stic techniques." 42 U.S.C. §§ 423(d)(3); 1382c(a)(3)(D). III. B ackground P la in tif f alleged that he was limited in his ability to work by complications from p re v io u s chemotherapy treatment, arthritis and low back pain. (Tr. 18, 114) He was thirtyn in e years old at the time of his alleged onset of disability. (Tr. 49) He is a high school
graduate and a one-year technical college graduate. (Tr. 18, 118) He has past relevant work a s a heavy equipment operator and truck driver. (Tr. 49, 115, 123-30) T h e ALJ considered Plaintiff's impairments by way of the required five-step se q u e n tia l evaluation process. The first step involves a determination of whether the c la im a n t is involved in substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(i); 4 1 6 .9 2 0 (a )(4 )(i) (2007). If the claimant is, benefits are denied, regardless of medical c o n d itio n , age, education or work experience. Id. at §§ 404.1520(b); 416.920(b). S te p 2 involves a determination of whether the claimant has an impairment (or c o m b in a tio n of impairments) which is "severe" and meets the duration requirement. Id. at § § 404.1520(a)(4)(ii); 416.920(a)(4)(ii). A "severe" impairment significantly limits a c la im a n t's ability to perform basic work activities. Id. at §§ 404.1520(c); 416.920(c). S te p 3 involves a determination of whether the severe impairments meet or equal a lis te d impairment. Id., §§ 404.1520(a)(4)(iii); 416.920(a)(4)(iii). If so, and the duration re q u ire m e n t is met, benefits are awarded. Id. If the claimant does not meet or equal a Listing, then a residual functional capacity a s s e s s m e n t is made. Id., §§ 404.1520(a)(4); 416.920(a)(4). This residual functional c a p a c ity assessment is utilized at Steps 4 and 5. Id. S te p 4 involves a determination of whether the claimant has sufficient residual f u n c tio n a l capacity to perform past relevant work. Id., §§ 404.1520(a)(4)(iv); 4 1 6 .9 2 0 (a )(4 )(iv ). If so, benefits are denied. Id. S te p 5 involves a determination of whether the claimant is able to make an a d ju s tm e n t to other work, given claimant's age, education and work experience. Id., § § 404.1520(a)(4)(v); 416.920(a)(4)(v). If so, benefits are denied; if not, benefits are a w a rd e d . Id.
The ALJ found Plaintiff had not engaged in substantial gainful activity since his a lle g e d onset date, April 30, 2006. (Tr. 45) He found that Plaintiff had "severe" im p a irm e n ts , degenerative disk disease, degenerative joint disease and residual effects of te s tic u la r cancer. Id. He determined Plaintiff did not have an impairment or combination of im p a irm e n ts that met or equaled a Listing. (Tr. 46) He judged that Plaintiff's allegations re g a rd in g his limitations were not totally credible. (Tr. 47) T h e ALJ found that Plaintiff retained the residual functional capacity for less than a f u ll range of light work. (Tr. 46, 48, 49) He determined Plaintiff was unable to perform any o f his past relevant work. (Tr. 49) Based upon responses by a vocational expert to written in te rro g a to rie s , the ALJ found that there were a significant number of jobs in the economy w h ic h Plaintiff could perform, notwithstanding his limitations, for example, small products a s s e m b le r, food order clerk and production inspector. (Tr. 50) Thus, the ALJ concluded th a t Plaintiff was not disabled. Id. T h e ALJ found that Plaintiff retained the residual functional capacity for less than a f u ll range of light work, including up to four hours of walking/standing, one hour at a time. (Tr. 46, 48, 49) The ALJ considered Plaintiff's complaint of right knee pain: T h e claimant has recently sought treatment for right knee pain (Exhibit 8F). On February 5, 2008, Dr. Ross found that the claimant retained full range of m o tio n in his knees and most other joints and concluded that he was possibly a f f e c te d by mild degenerative joint disease (Exhibit 7F). On February 14, 2 0 0 8 , he sought emergency treatment for right knee pain (Exhibit 8F/6). He re p o rte d that he originally hurt this knee while in the military in 1987 or 1988. (Id.) At that time, physical examination revealed that his right knee was a m irro r image of his left knee with no swelling, redness or effusion. (Id.) He re ta in e d full extension and ligaments appeared intact. (Id.) Despite these se e m in g ly benign findings, subsequent MRI revealed a meniscal tear, ACL[ 2 ] te a r, and degenerative changes in his knee (Exhibit 8F/37). On April 28, 2008, h e presented as markedly symptomatic with substantial tenderness in his knee Anterior cruciate ligament. Neal M. Davis, Medical Abbreviations: 15,000 Conveniences a t the Expense of Communications and Safety, 26 (10th ed. 2001). 4
(Exhibit 8F/11). There are no follow-up treatment notes that reference sig n if ic a n t knee pain or limitation. A c c o rd in g ly, the undersigned finds that the claimant appears to have e x p e rie n c e d largely normal right knee functioning until sometime around M a rc h , 2008. At that time, he was apparently limited by a torn meniscus, torn A C L , and degenerative changes. However, there has been little follow-up tre a tm e n t demonstrating persistent functional deficits related to right knee p a in . Therefore, his right knee impairment has not prevented him from m e e tin g the general requirements of light work. His standing and walking is lim ite d to no more than 4 hours and only one hour at a time. (Tr. 48) IV . D is c u ss io n T h e ALJ placed too much emphasis on the lack of follow-up treatment. John L. V a n d e rs c h ild e n , M.D., Veterans Administration orthopaedic surgeon, evaluated Plaintiff A p ril 28, 2008, eight days before the hearing. (Tr. 354) He noted exquisite tenderness in th e posteromedial3 corner. Id. Examination confirmed the torn ACL. Id. He concluded: " S e e in g that he is markedly symptomatic, we will plan on reconstructing the ACL in the n e a r future. He does understand the risks and benefits and agrees with surgical intervention. He will be scheduled accordingly." Id. This evidence clearly undermines the ALJ's c o n c lu s io n that Plaintiff was able to walk/stand up to four hours in an eight-hour workday. Plaintiff makes other arguments, which need not be addressed at length. Two merit b rie f discussion. Plaintiff argues the ALJ failed to consider the May, 2000 Veterans A d m in is tra tio n determination that his low back strain disability rating had been increased f ro m 10% to 40%. (Br. 12-13) Plaintiff's point is not well taken. Plaintiff did not submit th a t evidence to the ALJ, but only to the Appeals Council. (Tr. 5, 12-13) The Appeals C o u n c il did consider it. (Tr. 1-2)
Behind and to the inner side. PDR Medical Dictionary 1546 (3d ed. 2006). 5
Plaintiff also contends the ALJ erred by not considering his obesity. (Br. 11-12) Significantly, Plaintiff did not claim disability based on obesity in his application for b e n e f its or at the administrative hearing. Box v. Shalala, 52 F.3d 168, 171 (8th Cir. 1995). M o re importantly, there is no evidence in the record that Plaintiff's obesity imposed a n y limitations on his ability to work. Id.; see Forte v. Barnhart, 377 F.3d 892, 896 (8th Cir. 2 0 0 4 )(a lth o u g h treating doctors noted claimant was obese and should lose weight, none su g g e ste d obesity imposed additional work-related limitations, and claimant did not testify th a t obesity imposed additional restrictions). V. C o n c lu s io n T h e Court finds that the ALJ's decision is not supported by substantial evidence. Therefore, the ruling of the Commissioner must be reversed and the matter remanded for a p ro p e r evaluation of Plaintiff's knee pain and its impact on his residual functional capacity. A c c o rd in g ly, the Commissioner's decision is reversed and remanded for action c o n s is te n t with this opinion. This is a "sentence four" remand within the meaning of 42 U .S .C . § 405(g) and Melkonyan v. Sullivan, 501 U.S. 89 (1991). IT IS SO ORDERED, this 8th day of March, 2010.
______ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ U N IT E D STATES MAGISTRATE JUDGE
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