Harris v. Social Security Administration

Filing 18

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

Doc. 18

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

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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).

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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).

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III.

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

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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

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