Hunter v. Astrue

Filing 21

MEMORANDUM OPINION. Signed by District Judge Michael F. Urbanski on 7/5/11. (tob)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
LORRAINE D. HUNTER,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

)
)
) Civil Action No. 7:10cv00311
)
)
)
) By: Hon. Michael F. Urbanski
)
United States District Judge
)
)

MEMORANDUM OPINION
Plaintiff Lorraine D. Hunter (“Hunter”) brought this action for review of the
Commissioner of Social Security’s (“Commissioner”) decision denying her claim for disability
insurance benefits and supplemental security income benefits under the Social Security Act (the
“Act”). On appeal, Hunter contends that the Administrative Law Judge (“ALJ”) erred in
assessing her credibility and by failing to give appropriate weight to her treating physicians.
Having reviewed the administrative record and the briefs filed by counsel, it is clear that
the ALJ failed to give appropriate consideration to the opinion of Hunter’s treating physicians,
whose determination that Hunter’s impairments preclude her from all work is amply supported in
the record. In addition, the ALJ’s credibility determination was based on a flawed factual
premise and, as such, lacks a foundation in substantial evidence. Accordingly, by separate Order
consistent with this opinion, plaintiff’s motion for summary judgment (Docket #10) will be
GRANTED, the Commissioner’s motion for summary judgment (Docket #15) will be DENIED,
and this case will be REVERSED and REMANDED to the Commissioner for purposes of
calculating payment of benefits commencing July 1, 2006.

I
Section 405(g) of Title 42 of the United States Code authorizes judicial review of the
Social Security Commissioner’s denial of social security benefits. Mastro v. Apfel, 270 F.3d
171, 176 (4th Cir. 2001). “‘Under the Social Security Act, [a reviewing court] must uphold the
factual findings of the [ALJ] if they are supported by substantial evidence and were reached
through application of the correct, legal standard.’” Id. (alteration in original) (quoting Craig v.
Chater, 76 F.3d 585, 589 (4th Cir. 1996)). “Although we review the [Commissioner’s] factual
findings only to establish that they are supported by substantial evidence, we also must assure
that [his] ultimate conclusions are legally correct.” Myers v. Califano, 611 F.2d 980, 982 (4th
Cir. 1980).
The court may neither undertake a de novo review of the Commissioner’s decision nor
re-weigh the evidence of record. Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1992). Judicial
review of disability cases is limited to determining whether substantial evidence supports the
Commissioner’s conclusion that the plaintiff failed to satisfy the Act’s entitlement conditions.
See Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). Evidence is substantial when,
considering the record as a whole, it might be deemed adequate to support a conclusion by a
reasonable mind, Richardson v. Perales, 402 U.S. 389, 401 (1971), or when it would be sufficient
to refuse a directed verdict in a jury trial. Smith v. Chater, 99 F.3d 635, 638 (4th Cir. 1996).
Substantial evidence is not a “large or considerable amount of evidence,” Pierce v. Underwood,
487 U.S. 552, 565 (1988), but is more than a mere scintilla and somewhat less than a
preponderance. Perales, 402 U.S. at 401. If the Commissioner’s decision is supported by
substantial evidence, it must be affirmed. 42 U.S.C. § 405(g); Perales, 402 U.S. at 401.

2

“Disability” is the “inability to engage in any substantial gainful activity by reason of any
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 than 12
months.” 42 U.S.C. § 423(d)(1)(A). The “[d]etermination of eligibility for social security
benefits involves a five-step inquiry.” Walls v. Barnhart, 296 F.3d 287, 290 (4th Cir. 2002).
This inquiry asks whether the claimant (1) is working; (2) has a severe impairment; (3) has an
impairment that meets or equals the requirements of a listed impairment; (4) can return to his or
her past relevant work; and if not, (5) whether he or she can perform other work. Heckler v.
Campbell, 461 U.S. 458, 460-462 (1983); Johnson v. Barnhart, 434 F.3d 650, 654 n.1 (4th Cir.
2005) (citing 20 C.F.R. § 404.1520). If the Commissioner conclusively finds the claimant
“disabled” or “not disabled” at any point in the five-step process, he does not proceed to the next
step. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). Once the claimant has established a prima
facie case for disability, the burden then shifts to the Commissioner to establish that the claimant
maintains the residual functional capacity (“RFC”),1 considering the claimant’s age, education,
work experience, and impairments, to perform alternative work that exists in the local and
national economies. 42 U.S.C. § 423(d)(2)(A); Taylor v. Weinberger, 512 F.2d 664, 666 (4th
Cir. 1975).

1

RFC is a measurement of the most a claimant can do despite his limitations. See 20 C.F.R. §§ 404.1545(a),
416.945(a). According to the Social Security Administration:
RFC is an assessment of an individual’s ability to do sustained work-related physical and mental
activities in a work setting on a regular and continuing basis. A ‘regular and continuing basis’
means 8 hours a day, for 5 days a week, or an equivalent work schedule.
Social Security Regulation (SSR) 96-8p. RFC is to be determined by the ALJ only after he considers all relevant
evidence of a claimant’s impairments and any related symptoms (e.g., pain). See 20 C.F.R. §§ 404.1529(a),
416.929(a).

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II
On the date the ALJ rendered his decision in this case, September 4, 2008, Hunter was
thirty-six years old. Hunter completed high school and obtained a degree as a certified nursing
assistant. (Administrative Record, hereinafter “R.” at 33.) Hunter worked for many years as a
nursing assistant in nursing homes, and later as a closing manager in a coin laundry and a
molding machine operator. (R. 166.) Hunter worked consistently from 1991 until 2004 when
she was forced to stop working due to low back pain.
Hunter alleges a disability onset date of January 13, 2004, due to her degenerative disc
disease and poor outcomes following two back surgeries. (R. 165.) Hunter’s application for
benefits was rejected by the Commissioner initially based on a medical records reviews by
Robert McGuffin, M.D., on December 18, 2006 (physical), and Richard J. Milan, Jr., Ph.D., on
December 22, 2006 (mental). (R. 299-306, 307-20.) This decision was confirmed on
reconsideration based on medical records reviews by Dr. Joseph Duckwall on March 12, 2007
(physical), and Howard S. Leizer, Ph.D., on February 20, 2007 (mental). (R. 359-66, 367-81.)
An administrative hearing was convened before ALJ Mark A. O’Hara on April 11, 2008, at
which Hunter was represented by counsel. (R. 21-79.) 2
The ALJ found that Hunter’s “degenerative disc disease, status post 2 surgeries, and
obesity are severe impairments as they limit her mobility, ability to lift and carry heavy objects,
her ability to perform more than occasional stooping and crouching, and her ability to be exposed
to workplace hazards.” (R. 13.) The ALJ concluded that these severe impairments did not meet
a listing, and that Hunter retained the RFC to perform a limited range of light work restricted to
2

The administrative record contains an earlier decision by ALJ O’Hara dated June 30, 2006, concluding that Hunter
was not under a disability based on an application filed on July 20, 2004. (R. 83-89.) As Hunter did not appeal that
decision, it has preclusive effect as to the period of claimed disability through June 30, 2006. See Albright v.
Comm. of Social Sec. Admin., 174 F.3d 473, 476 n.4 (4th Cir. 1999). This appeal concerns the Commissioner’s
decision concerning the period after July 1, 2006.

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lifting and carrying 20 pounds occasionally and 10 pounds frequently, standing and walking 6
hours in an 8 hour day, sitting for 6 hours in an 8 hour day, pushing and pulling up to 20 pounds
occasionally and 10 pounds frequently with her upper and lower extremities, and only occasional
stooping and crouching. (R. 14-15.) The ALJ determined that Hunter’s mental health
impairments were not severe. Finding there are a significant number of jobs in the national
economy that she can perform, the ALJ concluded on September 4, 2008 that Hunter was not
disabled under the Act. (R. 19-20.) It was not until May 21, 2010 that the Appeals Council
denied Hunter’s request for review and this appeal followed. (R. 1-3.)
III
Hunter argues that the ALJ erred by failing to give appropriate weight to the opinions of
her treating physicians, Drs. Patricia Henderson and Noel Jewell. Treating physicians’ opinions
are to be given controlling weight if they are supported by medically acceptable clinical and
laboratory diagnostic techniques and are not inconsistent with other substantial evidence in the
record. Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001) (“[A] treating physician’s opinion on
the nature and severity of the claimed impairment is entitled to controlling weight if it is wellsupported by medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in the record.”); 20 C.F.R. §§ 404.1527(d)(2),
416.927(d)(2) (“Generally, we give more weight to opinions from your treating sources, since
these sources are likely to be the medical professionals most able to provide a detailed,
longitudinal picture of your medical impairment(s) and may bring a unique perspective to the
medical evidence that cannot be obtained from the objective medical findings alone or from
reports of individual examinations….”); Social Security Ruling 96-2p.

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The administrative record reflects that Patricia Henderson, M.D., Hunter’s primary care
physician, has treated Hunter for many years for her persistent back pain and has consistently
concluded that she is incapable of working. Hunter had back surgery at L5-S1 in July, 2002, and
Dr. Henderson had seen Hunter for her back pain for at least a year before Hunter’s disability
onset date in January, 2004. Dr. Henderson’s treatment of Hunter in 2003 began with
medication and physical therapy, but these were not successful, and Hunter was referred to a
neurosurgeon, Dr. James Leipzig, for further surgical evaluation. Dr. Leipzig saw Hunter on
March 22, 2004 and concluded that additional surgery was appropriate based on her complaints
of pain, physical examination and x-rays. However, because the proposed surgery was quite a
large procedure, Dr. Leipzig noted that it would be desirable if it could be avoided. As such, Dr.
Leipzig referred Hunter to a physical medicine specialist. (R. 256.) Physical therapy ensued
over the next few months, which Hunter reported was not helpful. (R. 255.)
Hunter decided to undergo a second back surgery, following a discussion with Dr.
Leipzig of her realistic expectations. Dr. Leipzig noted at the time that “she performs heavy
factory work and I do not feel this is in the future for her.” (R. 255.) Dr. Leipzig performed an
anterior L5-S1 discectomy and interbody fusion on July 13, 2004. Dr. Leipzig’s notes reflect
that Hunter did well following surgery. (R. 248-49.) Hunter began a course of physical therapy
on October 6, 2004, which was discontinued at her request on November 18, 2004, because she
felt she was not improving. (R. 465; see also R. 451.) On February 9, 2005, Hunter appeared at
the Alleghany Regional Hospital emergency room, complaining of leg and back pain. (R. 454.)
The ER records indicate that she had fallen in January. (R. 456.) She also reported during a
subsequent physical therapy session in March that she had woken up one day in January unable
to walk. (R. 451.)

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Hunter was seen by Dr. Henderson throughout the spring of 2005 complaining of back
pain and leg problems, and was referred to Dr. Leipzig again in August, 2005. During that visit,
Hunter complained to Dr. Leipzig of left buttock pain, an abnormal gait and occasional left leg
pain. Physical examination and x-rays were largely normal, and Dr. Leipzig’s impression was of
possible SI joint dysfunction. (R. 241.) Dr. Leipzig again referred Hunter to a physical medicine
specialist, who noted on August 19, 2005 that she had symptoms suggestive of a peripheral
polyneuropathy. (R. 289.) Hunter was seen again by the physiatrist, Dr. Clement Elechi, on
March 28, 2006, and at that time complained of steadily worsening back pain and persistent left
leg pain. (R. 282.) Dr. Elechi, concerned about arachnoiditis, ordered an MRI, the report of
which, dated April 5, 2006, noted “[i]nterval anterior fusion L5-S1 where there is stable minimal
left posterolateral disc protrusion in addition to some enhancing epidural fibrosis left lateral
recess,” but no other significant abnormalities. (R. 281.)
In July, 2006, Hunter began to complain of anxiety, depression and anger along with her
back pain. (R. 332.) Dr. Henderson referred Hunter to the UVA Pain Management Clinic and
Dr. Noel Jewell, who first saw Hunter on August 1, 2006. Dr. Jewell diagnosed Hunter with
major depressive disorder and chronic pain and prescribed an antidepressant. (R. 402.)
Hunter discussed her inability to obtain disability benefits with Dr. Henderson on August
2, 2006. (R. 330.) Dr. Henderson authored a disability opinion letter on September 5, 2006. In
her letter, Dr. Henderson describes Hunter’s pain as “constant and unrelenting,” and indicated
that she has “never interviewed her that [sic] she did not have to get up and stand frequently
during our talk.” (R. 327.) As such, Dr. Henderson stated that “[s]edentary work is out of the
question. She cannot stand or sit for longer than ten to fifteen minutes and requires lying down

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at frequent intervals.” (R. 327.) In addition, Dr. Henderson noted that Hunter has developed
severe symptoms of anxiety, depression and anger.
Hunter continued to be treated for her chronic low back pain and peripheral neuropathy in
2007 and 2008. She was seen a number of times at UVA Pain Management Clinic during this
period for chronic low back pain and bilateral lower limb pain, and aquatic therapy was
recommended. An MRI performed on March 13, 2008 indicated a “new small left paramedian
disc protrusion L4-5 with mild cranial migration of herniated disc material in the midline.”
(R. 557.) Hunter’s back surgeon, Dr. Leipzig, saw her again on April 14, 2008 and noted that the
MRI revealed perhaps a small disc protrusion or a bulge at the L4-L5 level. (R. 559.) Dr.
Leipzig indicated that he preferred to hold off on any aggressive workup and recommended that
Hunter pursue pain management.
A Functional Capacity Evaluation (“FCE”) was performed on Hunter by Elizabeth J.
McCoy of Highlands Therapy on February 6, 2008. McCoy determined that Hunter was
significantly limited by her trunk instability and weakness and, despite her consistent
performance on all tests, concluded that “Hunter falls below the U.S. Dept. of Labor’s Category
of Sedentary work due to her trunk mobility and strength deficits which require minimal weights
to be lifted or handled on only rare occasions with frequent changes of position.” (R. 542.)
Upon review of this evaluation, Dr. Henderson opined in a letter dated February 8, 2008 that “it
is my opinion that Ms. Hunter is unable to participate in any type of ‘substantial gainful work.’
How can she possibly do sedentary work for six to eight hours a day when she cannot sit for
twenty minutes in my office without developing severe back spasms which require ten minutes
of working with her in order that she can stand straight?” (R. 544.) Dr. Henderson concluded as
follows:

8

I have known Ms. Hunter for some years, even prior to our first
office note dated January 29, 2003. I was the Medical Director at
Woodlands Nursing Home in Clifton Forge. She was a nursing
assistant at that time, and she was cheerful, eager, compassionate,
and a hard worker. Never in my relationship with Ms. Hunter have
I seen any signs of malingering or drug abuse.
In our
conversations, she wants to be well. She wants to be able to care
for herself and her daughter. She wants her “life back.”
(R. 544.)
Hunter was seen by Dr. Noel Jewell for her depression and anxiety beginning in August,
2006, and he treated her on a number of occasions during 2006 and 2007. On February 6, 2008,
Dr. Jewell opined that “I have not known a period since I have seen her when she was able to
work a full schedule for any length of time, subjectively.” (R. 537.)
The ALJ dismissed the opinions of Drs. Henderson and Jewell, stating that they appear to
be based on Hunter’s subjective complaints, which he found not to be credible and subject to
symptom magnification. (R. 18.) Deeming Dr. Henderson’s detailed opinion letters to be
conclusory, the ALJ focused on the fact that Dr. Henderson’s treatment notes “are brief
handwritten forms that are not very readable and not indicative of an ongoing debilitating
condition.” (R. 17.) The ALJ also noted that Dr. Leipzig had not “suggested that the claimant
cannot work at all.” (R. 17-18.) This implies that Dr. Leipzig’s clinical notes suggest that
Hunter can work in some capacity, but in fact, there is no such suggestion made in Dr. Leipzig’s
treatment records. In fact, the only reference to Hunter’s ability to work in Dr. Leipzig’s notes is
in his June 3, 2004 preoperative discussion, where he noted that “she performs heavy factory
work and I do not feel this is in the future for her.” (R. 255.) There is nothing in any of Dr.
Leipzig’s clinical notes following Hunter’s second back surgery in 2004 that suggests Hunter is
capable of working. The ALJ also was critical of the 2008 FCE performed by Highlands

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Therapy, noting that it was only three pages long and was performed over only a few hours.
(R. 18.)
Instead of relying on these treating sources, the ALJ relied on his own judgment set forth
in a prior decision dated June 30, 2006 and the opinions of the state agency physicians to support
his conclusion that Hunter retained the RFC to perform light work. (R. 17.) The state agency
assessments were performed in late 2006, and reconsidered in early 2007. As such, they do not
reflect the continued back pain and peripheral neuropathy experienced by Hunter in 2007 and
2008.
The ALJ’s rejection of Hunter’s long-term treating physicians’ opinions that she cannot
work falls short of what is required by case law and the Commissioner’s own regulations. In
determining the weight to give to a medical source’s opinion, the ALJ must consider a number of
factors, including whether the physician has examined the applicant, the existence of an ongoing
physician-patient relationship, the diagnostic and clinical support for the opinion, the opinion’s
consistency with the record, and whether the physician is a specialist. 20 C.F.R. §§ 404.1527(d),
416.927(d). A treating physician’s opinion cannot be rejected absent “persuasive contrary
evidence,” and the ALJ must provide his reasons for giving a treating physician’s opinion certain
weight or explain why he discounted a physician’s opinion. Mastro, 270 F.3d at 178; 20 C.F.R.
§§ 404.1527(d)(2), 416.927(d)(2) (“We will always give good reasons in our notice of
determination or decision for the weight we give to your treating source’s opinion.”).
Dr. Henderson has been Hunter’s treating physician since 2003. Before that, Dr.
Henderson had the opportunity to observe Hunter work as a nursing assistant at a nursing home.
Based on her long experience with and treatment of Hunter, Dr. Henderson clearly opined that
she cannot work. This opinion is shared by Dr. Jewell, who treated Hunter for her depression

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and anxiety. Hunter had two low back surgeries, in 2002 and 2004, neither of which were
successful in alleviating her pain. The record contains objective evidence of problems with
Hunter’s back, including the new L4-5 disc protrusion noted in the March 13, 2008 MRI. (R.
556-57.) While that disc protrusion is noted to be small, it does provide some objective support
to corroborate Hunter’s persistent complaints of low back pain. In addition, a FCE was
performed on Hunter in 2008, which the ALJ rejected out of hand, not on its merits, but because
he believed it to be too short. It is noteworthy that although the FCE was submitted to the ALJ
on February 7, 2008, well in advance of the administrative hearing on April 11, 2008, the ALJ
asked no questions concerning the FCE to Jay H. Parish, the Vocational Expert. Indeed, the
ALJ’s examination of Parish was little more than a rehash of the testimony at the hearing on the
prior case, without any reference whatsoever to the recently completed FCE. (R. 70-76.) On
cross-examination, Parish conceded that if Dr. Henderson’s opinion and the functional
limitations set forth in the FCE are considered, there are no jobs Hunter could perform. (R. 77.)
Hunter’s complaints of low back pain are a repeated refrain reflected in her treatment
records. These complaints are consistent with the statements she made at the administrative
hearing as to her functional limitations. Hunter testified that she used to be a hard worker but
that since her back injury and two surgeries, she lives “in pain from day in, day out, wake up
with pain, go to bed with pain, go all through the day with pain. Pain has really controlled my
life.” (R. 36.) Hunter testified that although she can drive, she chooses not to do so because of
the pain. (R. 38.) As she has fallen a few times, Hunter uses a cane to walk. (R. 39-40.)
Hunter described her struggle to get out of bed in the morning and participating in the most basic
tasks of getting ready for the day, and her need to lay down three to four times a day due to her
back pain. (R. 42-44.) Hunter’s mother testified at the administrative hearing that her daughter

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was a good worker before her two back surgeries, but is not able to do so any longer because of
her back pain. She described the ordeal she encounters when her daughter’s back “locks up,”
which has become increasingly more frequent, and described the impact on Hunter’s life of her
chronic back problem as being “anger, pain, anger, pain.” (R. 64-68.)
This case lacks the persuasive contrary evidence needed to justify the ALJ’s rejection of
the treating physicians’ opinions. Dr. Henderson is Hunter’s longstanding treating physician.
Her opinion that Hunter is disabled from all work is shared by another treating physician, Dr.
Jewell, and supported by the FCE performed in 2008. Rather than properly consider the
opinions of Hunter’s treating physicians and the result of the 2008 FCE and MRI, it appears that
the ALJ relied principally on his own 2006 decision and state agency physician assessments from
that period. Taking the record as a whole, the court cannot conclude that the ALJ’s opinion is
supported by substantial evidence.
IV
The ALJ discounted the treating physicians’ opinions, concluding that they were based
on Hunter’s complaints alone. At the same time, the ALJ placed no stock in Hunter’s subjective
complaints, finding her not to be credible. The ALJ’s skepticism as to Hunter’s credibility
appears to stem from an issue concerning her foot. Hunter argues that the ALJ misunderstood
the facts regarding problems with her foot in 2007 and that this flawed factual predicate tainted
the ALJ’s credibility finding and led him to conclude that her credibility was significantly
undermined. (R. 16.)
With respect to her foot injury, the ALJ stated:
[T]here is evidence in the record that the claimant has made an
inconsistent statement, contradicted by other evidence of record,
regarding her 2007 foot injury, which significantly undermines her
credibility. Specifically, she testified that she was not sure how
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she injured her foot, but that she believed it had to do with the way
she had to go up and down the steps to her house. However, her
treatment notes reveal that this injury occurred when she dropped a
refrigerator storage door on her foot.
(R. 16.) As pointed out by Hunter’s counsel on brief and made clear through a careful review of
the medical records, there were two separate issues with Hunter’s right foot in 2007. Hunter
first complained of progressive right foot pain on March 8, 2007, when she appeared at the
emergency room. Rather than pinpoint one event as triggering her foot pain, the March 8, 2007
medical record reflects that the “discomfort began gradually, got progressively worse,” over a
two and a half week period. (R. 406.) An x-ray revealed a stress fracture of the proximal 5th
metacarpal. (R. 406.) Hunter was seen in follow-up on April 5 and April 9 by an orthopedist,
Dr. Clare Weidman, who ordered a bone scan that revealed an obvious fracture. (R. 404-05.)
Dr. Weidman counseled Hunter that there was nothing special that could be done, and that the
healing would simply have to take some time. (R. 404.) Five weeks later, on May 15, 2007,
Hunter again appeared at Dr. Weidman’s office after dropping a refrigerator storage door on the
dorsum of her right foot. The office note states that “[t]he patient was markedly improved after
her 5th metatarsal fracture when this occurred.” (R. 403.) Obviously, Hunter had been
diagnosed and was recovering from the 5th metatarsal fracture before the refrigerator door fell on
her foot.
In contrast to these facts apparent from the record, the ALJ conflates Hunter’s two foot
injuries into one, and seizing on Hunter’s failure to mention the refrigerator door in her
testimony as the source of her foot problem, determined that this “significantly undermines her
credibility.” (R. 16.) By failing to note that Hunter suffered from a stress fracture in her foot
months before the refrigerator door episode, and thereby discounting Hunter’s credibility, the
ALJ plainly erred. Not only does this error call into question the ALJ’s credibility
13

determination, it affects his consideration of the opinions of the treating physicians as, in the
ALJ’s view, those opinions were entirely based on Hunter’s subjective complaints. Once the
ALJ determined that Hunter could not be believed, it was an easy leap for the ALJ to conclude
that the opinions of the treating physicians could not be relied upon as well.
Plainly, the ALJ’s credibility assessment is founded on a faulty assumption, i.e., that
Hunter’s testimony about how her foot was hurt in 2007 was inconsistent with her medical
records. This credibility assessment necessarily affects the ALJ’s view of the opinions of the
treating physicians, and as such it provides an additional reason to conclude that the ALJ’s
decision is not supported by substantial evidence.
V
It is the court’s role to determine whether the Commissioner’s decision is supported by
substantial evidence. In this case, substantial evidence does not support the Commissioner’s
decision, as the ALJ did not give proper weight to the opinion of Hunter’s treating physicians,
Drs. Henderson and Jewell. Nor does the ALJ properly credit the FCE performed in 2008,
opting instead to rehash the vocational evidence from a prior application. In addition, the factual
premise underlying the ALJ’s rejection of Hunter’s credibility is plainly wrong, as the ALJ failed
to note that Hunter suffered from a stress fracture in her foot months before a refrigerator door
fell on it. Given the treating opinions of Drs. Henderson and Jewell and the consistent 2008
FCE, proper application of the treating physician rule requires that that plaintiff’s motion for
summary judgment (Docket #10) be GRANTED and the Commissioner’s motion for summary
judgment (Docket #15) be DENIED, and compels the conclusion that disability benefits be
awarded. As such, an order will be entered REVERSING and REMANDING this case with

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instructions to the Commissioner to calculate payment of disability benefits to Hunter beginning
July 1, 2006.
Entered: July 5, 2011

/s/ Michael F. Urbanski
Michael F. Urbanski
United States District Judge

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