Anderson v. Astrue

Filing 38

ORDER. Order Affirming Denial Decision entered 2/17/09 is withdraw. Judgment entered 2/17/09 is vacated. The decisions of Administrative Law Judges affirmed by the Appeals Council on 7/19/07 are reversed and Commissioner shall require a full review and evaluation of the eligibility of Diana Anderson for Supplemental Security Income Disability Benefits, by Judge Richard P. Matsch on 2/1/10. (gmssl, )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Senior District Judge Richard P. Matsch Civil Action No. 07-cv-01877-RPM DIANA ANDERSON, Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. __________________________________________________________________ ORDER VACATING JUDGMENT AND REVERSING DECISIONS DENYING APPLICATIONS FOR SUPPLEMENTAL SECURITY INCOME __________________________________________________________________ This civil action was initiated by a complaint filed pursuant to 42 U.S.C. § 405(g) seeking review of an Appeals Council's decision, dated July 19, 2007, upholding decisions made by Administrative Law Judges, dated November 4, 2004, and October 2, 2006. The administrative record filed was limited to the ALJ decision of October 2, 2006, and the parties submitted briefs directed only to that decision. The subject of that decision was an application for SSI benefits filed on December 2, 2004, which was asserted by the claimant's former counsel to be the onset date. Upon review of the record, this Court entered an Order Affirming Denial Decision on February 17, 2009, and judgment entered on that date. The plaintiff filed an appeal on April 20, 2009. The Commissioner then submitted the administrative record relevant to the November 4, 2004, ALJ decision and the

parties agreed to dismiss the appeal and submitted a joint motion for scheduling in this court on September 17, 2009, agreeing to the submission of briefs addressing the earlier decision. Those briefs have now been filed and the Court has before it the full administrative record applicable to both decisions. Because the decision which was affirmed by this Court's order of February 17, 2009, considered only the application of December 2, 2004, and did not re-open the earlier decision or review the claimant's history, it was fundamentally flawed. The decision of November 4, 2004, was a determination that disability payments should be terminated because of medical improvement. That determination is not supported by the record and is contrary to law. Because the earlier decision must be reversed, this Court's decision and judgment has been undermined and must be vacated. Diana Anderson has never been gainfully employed. She began receiving Supplemental Security Income Disability payments beginning on January 1, 1978, due to mental illness. In May, 1996, SSA found medical improvements of the mental health impairments but that she had severe impairments of obesity and degenerative joint disease in her spine meeting the severe impairments criteria for Listing 9.09(a) for obesity. Disability payments continued. The SSA then determined that due to medical improvement in her impairments, the claimant's disability ceased as of September 30, 2002. That decision was the subject of the ALJ hearing held on April 13, 2004, at which Ms. Anderson appeared without a legal representative. The result was the ALJ's decision of November 4, 2004. At that hearing, Ms. Anderson said that she had 2

just been diagnosed with osteoarthritis by Dr. Fitzgerald. The ALJ had no records from Dr. Fitzgerald and said they would be obtained before the ALJ would make a decision. There was no meaningful testimony taken at the hearing. In his decision, the ALJ found that the claimant had improved medically despite her continued obesity because the evidence did not show that there was ongoing seizure activity or treatment for pain. The ALJ did refer to a March 4, 2004, report from Dr. Edward Fitzgerald to the claimant's treating physician, Dr. Higgins, in which Dr. Fitzgerald assessed the claimant as having generalized osteoarthritis. (R. 624-625). The diagnosis of arthritis was also shown in a bone imaging study report, done March 23, 2004, with degenerative changes in the knees and shoulders shown. (R. 626). The ALJ found that despite the obesity and generalized osteoarthritis the claimant had the residual functional capacity for work as a street sweeper, photo copy machine operator and video rental clerk. (R.390). That finding was apparently based on the testimony of a vocational expert at the hearing which was not given in response to any adequate hypothetical question. What is revealed by examination of the complete record is that after recognizing this woman's disability from age 20 to age 43, the SSA terminated her benefits on September 30, 2002, based on medical improvements which are not shown in the record and that termination was approved by an ALJ after what can only be considered a perfunctory hearing. The decision is not supported by the evidence. The second decision ignored all of this history and reviewed the

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claimant from the perspective of a claim of disability first made on December 2, 2004. That was both procedural and factual error. These denial decisions must now be reversed and it is incumbent upon the Commissioner to cause a new and complete review of Ms. Anderson's condition. It is difficult to understand how a woman who has never been able to obtain substantial gainful employment can now be considered to have the capacity to perform the jobs that these ALJ's considered. It is now ORDERED that the Order Affirming Denial Decision, entered in this court on February 17, 2009, is withdrawn and it is FURTHER ORDERED that the Judgment entered thereon on February 17, 2009, is vacated and it is FURTHER ORDERED that the decisions of Administrative Law Judges affirmed by the Appeals Council on July 19, 2007, are reversed and it is FURTHER ORDERED that the Commissioner shall require a full review and evaluation of the eligibility of Diana Anderson for Supplemental Security Income Disability Benefits. Dated: February 1st, 2010. BY THE COURT: s/Richard P. Matsch Richard P. Matsch, Senior District Judge

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