Huber v. Social Security Administration

Filing 15

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)

Download PDF
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) 1 The parties have consented to the jurisdiction of the Magistrate Judge. (Docket entry #5) II. 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 2 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. 3 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 2 (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) 3 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 6

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?