Robinson v. Social Security Administration

Filing 20

MEMORANDUM RULING re 1 Complaint filed by Henry M Robinson, Jr: For the reasons stated in the Memorandum Ruling, the Commissioner's decision to deny benefits is affirmed, and Plaintiff's complaint is dismissed with prejudice. Signed by Magistrate Judge Mark Hornsby on 8/3/10. (crt,Cassanova, M)

Robinson v. Social Security Administration

Do c. 20

U N I T E D STATES DISTRICT COURT W E S T ER N DISTRICT OF LOUISIANA S H R E V EP O R T DIVISION H . M . R . , JR. (XXX-XX-1395) VERSUS U .S . COMMISSIONER SOCIAL S E C U RI TY ADMINISTRATION M A G I S T R A T E JUDGE HORNSBY C I V I L ACTION NO. 09-cv-0475

M E M O R A N D U M RULING I n t r o d u c t io n P l a i n ti f f was born in 1965, has a high school education, and past work experience as a carpenter. He applied for disability benefits based on complaints including arthritis, ob es ity, and mental health problems. ALJ Osly F. Deramus 1 conducted a hearing and issued a written decision that analyzed the claim under the five-step sequential analysis. He found a t step one that Plaintiff had not engaged in substantial gainful activity, and at step two he f o u n d that Plaintiff suffers from arthritis and obesity, which are severe impairments within the meaning of the regulations.2

Counsel for Plaintiff filed a memorandum, but Plaintiff also filed a pro se mem orandu m. Plaintiff complains in his pro se submission that the Commissioner's m e m o r a n d u m refers to ALJ Charles Lindsay rather than ALJ Deramus. The C o m m i s s i o n e r discusses the correct opinion by ALJ Deramus, but he apparently made an i n a d v e r te n t reference to ALJ Lindsay, whose 2002 decision is also in the record. Tr. 4959. Plaintiff argues in his pro se submission that the finding of a severe impairment at step two requires the ALJ to find him disabled. Plaintiff bases this on the ALJ's state me nt that a decision of disabled or not disabled at any step ends the review. A findin g of a severe impairment at step two is not equal to a finding of disabled. It merely
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T h e ALJ found at step three that the impairments did not meet or equal one of the l i st e d impairments that are so severe they would require a finding of disabled without f u r t h e r analysis. T h e ALJ then reviewed Plaintiff's testimony, the medical records, and other evidence a n d determined Plaintiff's residual functional capacity ("RFC"). He found that Plaintiff had t h e RFC to perform medium work, reduced by the ability to stand and/or walk for no more t h a n two hours in an eight-hour workday; perform only occasional climbing of ramps, stairs, a n d ladders, and perform frequent stooping, crouching, crawling, kneeling, and balancing; a n d still further reduced by the requirement that he avoid exposure to workplace hazards such a s dangerous moving machinery and unprotected heights. T h e ALJ found at step four that Plaintiff's RFC did not allow him to perform his past work as a carpenter. He then turned to step five and, based on the testimony of a vocational expert ("VE"), found that Plaintiff's RFC permitted him to perform the demands of (1) a s s e m b l e r of buttons & notions and (2) escort vehicle driver, both of which exist in s i g n if i c a n t numbers in the national and Louisiana economies. Accordingly, Plaintiff was f o u n d to be not disabled.

means the applicant has some physical or mental impairment that is more than a slight a b n o r m a l it y and interferes with the individual's ability to work. If the applicant does not have such an impairment, he is not disabled. If he has such an impairment, the analysis g o e s on to the other steps of the analysis to determine whether the limitations caused by the severe impairment are enough to prevents the person from working. Page 2 of 6

A b o u t four months after the ALJ's decision, Plaintiff obtained a functional capacity e v a l u a ti o n from Steve Allison, Doctor of Physical Therapy. Tr. 245. Allison found that P l a i n ti f f had the RFC to perform what he described as sedentary to restricted-light work, s u b j e c t to certain restrictions set forth in a table. The table states that Plaintiff will, when s i tt i n g , need to stand and walk for 30 minutes each hour. When Plaintiff is standing, he will n e e d to sit for 30 minutes each hour. Tr. 248. Plaintiff presented this report to the Appeals Co uncil. The Council wrote that it had considered Plaintiff's arguments and the additional e v i d e n c e but found no basis to change the ALJ's decision. Accordingly, the request for r e v i e w was denied. Tr. 6-8. Pursuant to 28 U.S.C. § 636(c) and the standing order of the d i s tr i c t court governing social security cases, the action was referred to the undersigned for d e c i s io n and entry of judgment. For the reasons that follow, the Commissioner's decision to deny benefits will be affirmed. Issue on Appeal Plain tiff's counsel argues that the Appeals Council erred because the Allison report d e p r i v e s the ALJ's decision of substantial evidence. S t a n d a r d of Review; Substantial Evidence This court's standard of review is (1) whether substantial evidence of record supports t h e ALJ's determination, and (2) whether the decision comports with relevant legal s t a n d a r d s . Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990). "Substantial evidence is more than a scintilla and less than a preponderance. It is such relevant evidence as a

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reaso nable mind might accept as adequate to support a conclusion." Muse v. Sullivan, 925 F . 2 d 785, 789 (5th Cir. 1991). A finding of no substantial evidence is justified only if there a r e no credible evidentiary choices or medical findings which support the ALJ's dete rmin ation . Johnson v. Bowen, 864 F.2d 340, 343-44 (5th Cir. 1988). An alys is Alliso n 's report states that Plaintiff needed to change between sitting and standing p o s i ti o n s every 30 minutes, with walking also required if Plaintiff has been sitting, suggests a greater degree of limitation than reflected in the RFC found by the ALJ. The court's role in this procedural setting is to review the Commissioner's final decision to determine whether there is substantial evidence to support it. That assessment includes a review of the both the e v i d en c e before the ALJ and that submitted for the first time to the Appeals Council. Higginbotham v. Barnhart, 405 F.3d 332 (5th Cir. 2005). Accordingly, the other evidence relev ant to Plaintiff's ability to sit and stand must be reviewed. Dr. Robert Holladay, an orthopedic surgeon, performed a consultative examination. H e found that Plaintiff was "physically capable of sitting, standing, or walking for at least six out of eight hours in the usual workday." He found that Plaintiff was capable of walking wit hou t benefit of a cane. Tr. 183-86. Dr. John W. McDonald also performed a consultative examination. He observed that P l a i n ti f f had an abnormal gait with mild limp and was able to slowly rise from a sitting p o s i ti o n without assistance. Plaintiff reported to Dr. McDonald that he rarely sees a

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p h y s ic i a n . Dr. McDonald wrote that he found no evidence of any acute joint injury, although d e g e n e r a ti v e joint disease was likely given Plaintiff's previous occupation and obesity. He f o u n d that Plaintiff "should be able to sit for a full workday, but he may have limitations in his ability to walk and/or stand for a full workday." Tr. 187-91. Dr. Gerald Dzurik, a state agency physician, completed a physical RFC assessment f o rm . He found that Plaintiff could sit, stand, or walk for at least six hours of an eight-hour wo rkd ay. Tr. 193. Dr. Raymond Cush also performed a consultative physical examination. He wrote that Plaintiff's back and leg problems were associated with no documentation but there was some d e c r e a s ed range of motion. Plaintiff could walk without an assistive device. Dr. Cush found t h a t Plaintiff could lift 50 pounds occasionally, 25 pounds frequently, and could stand and/or wa lk at least two hours in an eight-hour workday. Tr. 233-37. The record contains three reports from physicians, one of whom was an orthopedic spec ialist, who examined Plaintiff and found abilities to sit, stand, and walk consistent with o r even greater than the RFC assessed by the ALJ. There is also an assessment by a n o n - e x a m i n in g state agency physician that supports the RFC. Then there is the Allison report t h a t finds limitations greater than in the RFC, including a requirement that Plaintiff requires t h e use of a cane for safe walking. The report from the physical therapist may be inconsistent with the RFC found by the Commissioner, but its presence in the record does not deprive the Com missio n er's decision of substantial evidence. There were ample medical findings from

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exam in i n g and non-examining physicians that strongly supported the Commissioner's d e c i s io n with respect to Plaintiff's ability to sit, stand, and walk. The Allison report's rather e x tr em e requirements of interruptions each half hour to stand and walk are not consistent wit h the medical evidence. Neither is the finding that Plaintiff requires a cane to walk. The court has noted in a number of other decisions that these rather extreme l i m i t a ti o n s , which usually preclude most or all jobs, require a firm and explained foundation o f the medical and other evidence. Bell v. Commissioner, 2009 WL 5125418 (W.D. La. 2009). That foundation is not present in this case, so the unexplained finding in a chart p r e p a r e d by the physical therapist does not require reversal in the face of multiple sources o f competing physician findings.3 Accordingly, the Commissioner's decision is supported b y substantial evidence, and a judgment will be entered affirming the decision. A judgment wil l be entered consistent with this ruling. THUS DONE AND SIGNED in Shreveport, Louisiana, this 3rd day of August, 2010.

The court has reversed in similar cases where the Allison report undermined the R F C and there was no competing evidence from an examining source. That is not the situa tion in this case. Page 6 of 6

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