Harris v. Social Security Administration
MEMORANDUM OPINION AND ORDER reversing the descision of the Commissioner and remanding 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 8/26/10. (hph)
Harris v. Social Security Administration
IN THE UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF ARKANSAS W E S T E R N DIVISION J E R R Y G. HARRIS v. N O . 4:09CV00697 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 OPINION AND ORDER P la in tif f , Jerry G. Harris, has appealed the final decision of the Commissioner of the S o c ia l 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 I. P r o c e d u r a l Background: In his latest application, Plaintiff alleged that he was limited in his ability to work by p ro b le m s with his back, shoulders, neck, right arm, legs and hips.2 (Tr. 442) After c o n d u c tin g an administrative hearing, the Administrative Law Judge (ALJ) concluded that P la in tif f had not been under a disability within the meaning of the Social Security Act at any tim e through October 1, 2008, the date of his decision. (Tr. 398) On June 29, 2009, the A p p e a ls Council declined jurisdiction, making the ALJ's decision the final decision of the
The parties have consented to the jurisdiction of the Magistrate Judge. (Docket #4)
In an earlier application, he alleged problems with his back, shoulders, neck, right arm, a herniated disk in the cervical area and lumbar area, pain in his neck, behind the right shoulder blade, both shoulders, low back, down his left leg and headaches. (Tr. 86-87) He appealed an adverse administrative decision to this Court, which reversed and remanded b e c a u se of inadequate credibility analysis. Harris v. Astrue, 4:07CV00064 HLJ (Judgment, M a r. 27, 2008)(Tr. 416-20).
Commissioner. (Tr. 375-77) Plaintiff then filed his complaint initiating this appeal. (Docket #2) 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); see also 42 U.S.C. §§ 405(g), 1383(c)(3). Substantial evidence is such relevant evidence as a reasonable mind might accept as a d e q u a te to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Reutter e x rel. Reutter v. Barnhart, 372 F.3d 946, 950 (8th Cir. 2004)("Substantial evidence is less th a n a preponderance but is enough that a reasonable mind would find it adequate to support th e decision"). 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).
A L J 's Decision: P la in tif f was 45 years old at the time of the latest hearing. (Tr. 349) He is a high
sc h o o l graduate. (Tr. 349, 450) He also completed a five-week merchant marine course.3 (T r. 349) He has past relevant work as an engineer for an offshore supply vessel, offshore o ilf ie ld worker and industrial construction worker. (Tr. 14, 350-54, 443) T h e ALJ considered Plaintiff's impairments by way of the required five-step se q u e n tia l evaluation process: (1) whether the claimant was engaged in substantial gainful a c tiv ity; (2) if not, whether the claimant had a severe impairment; (3) if so, whether the im p a irm e n t (or combination of impairments) met or equaled an impairment listed in the L istin g of Impairments in Appendix 1, Subpart P, 20 C.F.R. Part 404; (4) if not, whether the im p a irm e n t (or combination of impairments) prevented the claimant from doing past re le v a n t work. If the claimant has sufficient residual functional capacity to perform past re le v a n t work, the inquiry ends and benefits are denied. 20 C.F.R. §§ 404.1520(a)(4)(iv); 4 1 6 .9 2 0 (a )(4 )(iv ). If the claimant cannot perform past relevant work, the ALJ proceeds to S te p 5, which requires 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. T h e ALJ found that Plaintiff had not engaged in substantial gainful activity since his a lle g e d onset date. (Tr. 394) He found that Plaintiff had "severe" impairments, anemia, h yp e rte n s io n and a back disorder. Id. He found Plaintiff did not have an impairment or c o m b in a tio n of impairments that met or equaled a Listing. Id. He judged Plaintiff's
In his first opinion, the ALJ stated Plaintiff had also completed "numerous courses" a t Louisiana Technical College. (Tr. 14) The Court cannot find support in the record for that statement. 3
allegations regarding the intensity, persistence and limiting effects of his symptoms were not c re d ib le . (Tr. 395) T h e ALJ found that Plaintiff retained the residual functional capacity for less than a f u ll range of light work. (Tr. 394, 397) He determined Plaintiff was unable to perform his p a st relevant work. (Tr. 396) Based on evidence from a vocational expert witness, the ALJ f o u n d that there were a significant number of jobs in the economy which Plaintiff could p e rf o rm , notwithstanding his limitations, for example, charge account clerk/account in te rv ie w e r, surveillance system monitor and paramutual ticket checker. (Tr. 397, 544) Thus, the ALJ concluded Plaintiff was not disabled. (Tr. 397) IV . D is c u ss io n : T h e Court is concerned about the completeness of the record. For instance, there is a n on-the-record discussion of "Exhibit, 32F." (Tr. 685) However, there is no Exhibit 32F in the record. That same exhibit is cited in the ALJ's decision. (Tr. 396) Similarly, the ALJ c ite s in his opinion to Exhibits 28F and 36F, although there are no Exhibits 28F or 36F in th e record. Id. At the last hearing, the ALJ mentioned that he had held a hearing on January 10, 2 0 0 8 . (Tr. 669) There is also in the record a Notice of Hearing setting the January 10, 2008, h e a rin g . (Tr. 404-07) The ALJ told Plaintiff's attorney he had notes from that hearing, so sh e could update the record as needed. (Tr. 672) He wanted to review his notes from Ja n u a ry a little more thoroughly. (Tr. 690) However, the transcript of that hearing is not a p a rt of the record. Therefore, there is evidence upon which the ALJ appears to have relied th a t is not a part of the record. D u rin g the first hearing, the ALJ stated that Plaintiff's date last insured was D e c e m b e r 31, 2008. (Tr. 342) At the last hearing, he stated it was December 31, 2009. (Tr. 3 9 2 ) While this is not a reversible error in and of itself, such discrepancies tend to 4
undermine the ALJ's conclusion. See Baumgarten v. Chater, 75 F.3d 366, 368-69 (8th Cir. 1 9 9 6 )(s e v e ra l inconsistencies relied upon by ALJ not supported by record). V. C o n c lu s io n : 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 in this case is not supported by substantial evidence. Therefore, the ruling of th e Commissioner must be reversed and the matter remanded for a reevaluation of Plaintiff's c la im . 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 26th day of August, 2010.
UNITED STATES MAGISTRATE JUDGE
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?