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Brown v. Colvin

United States District Court, Eighth Circuit

January 16, 2014

JACK JAY BROWN, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.

MEMORANDUM AND ORDER

RICHARD G. KOPF, Senior District Judge.

Plaintiff, Jack Jay Brown, brings this suit to challenge the Social Security Commissioner's final administrative decision denying his applications for disability insurance benefits ("DIB") and supplemental security income ("SSI") under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 401-434, 1381-1383f.[1] For the reasons discussed below, the Commissioner's decision will be reversed and the case will be remanded for further proceedings.

I. PROCEDURAL BACKGROUND

Plaintiff is a 50-year-old man who has a high school education and experience working as a truck driver and laborer. He last worked on December 1, 2008, and claims to be disabled because of back problems.

Plaintiff's applications for DIB and SSI were denied initially on April 1, 2010 (Transcript ("Tr.") (CM/ECF filing 13) 60). The applications were also denied on reconsideration, on August 11, 2010, with the Commissioner explaining:

You said that you are unable to work because of back injury.

The medical evidence shows you do have a history of the above conditions and some of your activities are limited. The current review of the medical evidence shows your condition prevents you from performing heavy physical labor and repetitive bending/stooping. While your physical health does limit some of your activities the medical evidence shows you are able to move about and lift/carry lighter types of objects in a satisfactory manner with the above restrictions.
The medical evidence in reference to your mental health shows your mental health would not significantly limit your ability to perform work activities.
We realize your condition prevents you from doing your past jobs but it does [not] prevent you from doing other types of work that is lighter and less strenuous. Thus, we are still unable to show you meet the guidelines for receiving disability benefits at this time.

(Tr. 67).

Following these denials, Plaintiff filed a request for an administrative hearing (Tr. 78-79). Robert J. Burbank, an administrative law judge ("ALJ"), conducted a hearing by video teleconferencing on January 18, 2012 (Tr. 26-49). Plaintiff was represented by counsel and testified at the hearing. A vocational expert, James Adams, also provided testimony. The ALJ issued an unfavorable decision on February 9, 2012, concluding that although Plaintiff is unable to perform any past relevant work, he is not disabled. Using the 5-step sequential analysis prescribed by Social Security regulations, [2] the ALJ made the following findings:

1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2010.
2. The claimant has not engaged in substantial gainful activity since December 1, 2008, the amended alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
3. The claimant has the following severe impairment: degenerative disc disease/osteoarthritis (20 CFR 404.1520(c) and 416.920(c)).
* * *
Additionally, a review of the medical record reflects the impairments of migraines (Exhibits 6F, pg. 6 and 10F, pg. 5); status-post kidney donation (Exhibits 4F and 6F, pg. 6); mood disorder and personality disorder (Exhibits 9F, pg. 1 and 11F, pg. 4). However, the claimant received a GAF of 60 upon discharge from the hospital in February 2010 and a GAF of 55 in March 2010 (Exhibits 9F, pg. 1 and 11F, pg. 5). Further, the medical record does not show a limitation in the claimant's ability to perform basic work activities due to these impairments and therefore, the undersigned finds that they are non-severe.
* * *
4. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).
The claimant has a "severe" physical impairment within the meaning of the applicable regulations, but this impairment does not meet or medically equal any of the listed impairments including 1.04. The claimant does not allege that he has an impairment of listing level severity nor has he met his burden of presenting medical evidence that supports such a finding. The undersigned has reviewed the medical evidence of record in its entirety and finds that the claimant's impairment does not meet or equal the level of severity set forth in any of the listed impairments. The claimant's condition does not meet the requirements of Listing 1.04 because the claimant does not have evidence of nerve root compression, or spinal arachnoiditis, or lumbar spinal stenosis resulting in pseudoclaudication.
5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b), in that the claimant can lift up to twenty pounds occasionally and lift or carry up to ten pounds frequently; stand and/or walk for six hours out of an eight-hour workday; and sit for six hours out of an eight-hour workday. Further, the claimant is occasionally able to reach in all directions, climb, balance, stoop, kneel, crouch, and crawl, and should avoid concentrated exposure to vibrations and hazards.
* * *
On the amended alleged disability onset date, the claimant was a 45-year old man who asserts that he is unable to work due to a back injury and lumbar fractures (Exhibits 4E, pg. 1; 12E, pg. 2; and 24E). At the hearing, the claimant testified that his back pain started when he broke his back in 2002, his pain is currently an "8" or "9" on a scale of 1-10, it extends to his feet and hands, causes migraines and difficulties sleeping, and he was terminated from his prior job as a truck driver due to his pain. The claimant also testified that he lies down two to three times a day to alleviate his pain, he has difficulties moving his legs, his legs tingle and have pressure, and he uses a cane for balance. Regarding his physical abilities, the claimant testified that he can stand for 5-15 minutes, walks every 30 minutes, sits for half the day, and that sitting is his most comfortable position, but he could not work a "desk job" because his back pain is too severe. Further, the claimant testified that he tries to walk for exercise, does some chores "as [he] can" including sweeping, washing the dishes, feeding the dogs and doing laundry. Previously, the claimant stated that he cooks, can drive for one and a half hours, sits and watches television, and can sit for two to three hours at one time with breaks, but is not able to do much due to pain (Exhibits 13E and 14E).
The undersigned finds that the claimant is limited to light exertional work, with the restrictions noted above, because of his impairment. Solely for historical perspective, the medical record reveals that the claimant suffered a spinal fracture and underwent an MRI in June 2002 that revealed degenerative disc disease without severe focal spinal stenosis or compression of the thoracic spinal cord as well as degenerative signal in the lumbar spine. An MRI of his cervical spine in August 2002 revealed only "very minor" disc bulging (Exhibits 1F and 2F, pgs. 7-9). That same month, x-rays of the claimant's lumbar spine revealed only "mild" degenerative changes (Exhibit 5F, pg. 53).
Subsequently, Timothy J. Birney, M.D., submitted a Worker's Compensation opinion in April 2003 that the claimant has a combined impairment of 14%, could work part-time at the medium exertional level, and work full-time at the light and sedentary exertional levels with alternating positions (Exhibit 5F, pgs. 61-64). Despite Dr. Birney's treating relationship with the claimant, the undersigned does not give his opinion controlling weight, but instead gives it partial weight because the medical record, including the objective imaging, indicates that the claimant is able to work full-time at both the light and sedentary exertional levels. However, Dr. Birney's opinion is remote in time, Social Security uses different standards for evaluating disability that [sic] Worker's Compensation, and whether an individual is disabled or able to work is an issue reserved for the Commissioner (20 CFR §§ 404.1527(e), 416.927(e); SSR 96-Sp, 61 Fed. Reg. at 34472).
Similarly, the claimant underwent a Functional Capacity Evaluation in March 2003 that opined he could work part-time at the medium exertional level, work full-time at the light and sedentary exertional levels, would benefit from alternating positions, and could occasionally sit, stand, walk, climb stairs utilizing bilateral handrails and should limit overhead reaching to a minimum (Exhibit 5F, pgs. 14-45). As with Dr. Birney's opinion, the undersigned gives these opinions partial weight because the medical record, including the objective imaging, shows that the claimant is able to work full-time at both the light and sedentary exertional levels. However, these opinions were rendered by non-acceptable medical sources, they are remote in time, Social Security uses different standards for evaluating disability that [sic] Worker's Compensation, and whether an individual is disabled or able to work is an issue reserved for the Commissioner (20 CFR §§ 404.1527(e), 416.927(e); SSR 96-Sp, 61 Fed. Reg. at 34472).
Several years later, the claimant presented for a medical consultative examination with Leland F. Lamberty M.D., in January 2007 who noted that he "seemed to be in discomfort during the examination, but there are little else in the way of findings." Dr. Lamberty determined that the claimant had chronic back pain and intermittent numbness and tingling in his left lower extremity, and opined that he should not repetitively lift, twist or bend and would have difficulty working as a truck driver, but could perform sedentary work (Exhibit 6F). The undersigned gives Dr. Lamberty's opinion little weight because he only examined the claimant one time and his opinion is remote in time, in that it was rendered nearly two years prior to the claimant's amended alleged onset date.
More recently, the claimant underwent another medical consultative examination with David Lindley, M.D., in March 2010. Dr. Lindley noted that x-rays of the claimant's lumbosacral spine revealed loss of lumbar lordosis with only "mild" muscle spasm, abnormalities of the L4 and L5 vertebral bodies, and sclerotic changes. After examination, Dr. Lindley diagnosed the claimant with osteoarthritis with an old injury at L4 and L5 as well as back pain, and opined that "he has not been deemed a candidate for surgery and is getting increasing disability related to this" (Exhibit 10F). The undersigned gives Dr. Lindley's opinion little weight because he only examined the claimant one time, it is inconsistent with the objective medical evidence that shows relatively benign findings, and whether an individual is disabled is an issue reserved for the Commissioner (20 CFR §§ 404.1527(e), 416.927(e); SSR 96-Sp, 61 Fed. Reg. at 34472) (Exhibits 1F; 2F, pgs. 7-9; and 5F, pg. 53).
The State agency medical consultants opined that the claimant could perform work at the light exertional level with some postural, manipulative and environmental limitations (Exhibits 13F and 15F; see also Exhibit 7F rendered prior to the amended alleged onset date also opining to light exertional work). The undersigned gives the opinions of the State agency medical consultants' [sic] significant weight because they were rendered after a review of the medical record and the consultants are familiar with the definitions and evidentiary standards used by the Agency. Further, they are consistent with each other and the medical record including the objective imaging (Exhibits 1F; 2F, pgs. 7-9; and 5F, pg. 53).
After considering the evidence of record, the undersigned finds that the claimant's medically determinable impairments could reasonably be expected to produce the alleged symptoms, but that the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are generally not fully credible. The claimant is able to engage in a wide range of activities of daily living that could translate into performing a job including household chores such as sweeping, washing the dishes, feeding the dogs, and laundry. Therefore, the claimant is capable of performing basic work activities consistent with the residual functional capacity stated above.
While the medical record evidences that the claimant has degenerative disc disease/osteoarthritis, there is insufficient evidence in the record to support the level of limitation alleged by the claimant. On the contrary, there are few objective findings and what objective evidence does exist is relatively benign (Exhibits 1F; 2F, pgs. 7-9; and 5F, pg. 53). Further, the medical record indicates minimal treatment since his amended alleged onset date and gaps in treatment. While the claimant testified that he uses a cane for balance, there is no indication in the medical record that it was prescribed. Further, despite his allegations of severe pain, the claimant was in no apparent distress at the hearing and testified that he sits most of the day, which is his most comfortable position. Additionally, the claimant's migraines, status-post kidney donation, mood disorder, and personality disorder were determined to be non-severe.
The undersigned further notes that the claimant testified that he has not received medical treatment because he is unable to afford it. However, the claimant also testified that he smokes cigarettes. Whether the claimant obtains cigarettes by buying them himself, borrowing money, or getting them from friends or family, his credibility is diminished because there is no indication that he has put as much energy or effort into finding alternative means to obtain medical treatment as he has put into obtaining cigarettes, despite his alleged lack of financial resources. The evidence does not document that the claimant was ever refused treatment or medication for any reason, including insufficient funds. Further, there is no persuasive evidence that the claimant ever sought the aid of any available public or private institution, program, or individual, to help defray the cost of treatment. Thus, the claimant's assertions that a lack of financial resources prevents his from getting treatment are unconvincing. If his impairments were truly as limiting and caused as much misery as the claimant has alleged, it seems that he would pursue regular medical care more diligently.
Accordingly, based upon the objective evidence, the claimant's course of treatment, his level of daily activity and his work history, the undersigned has determined that the claimant retains the residual functional capacity for work at the light exertional level due to his degenerative disc disease/osteoarthritis. Further, the claimant's degenerative disc disease/osteoarthritis causes limitations including occasionally being able to reach in all directions, climb, balance, stoop, kneel, crouch and crawl, and should avoid concentrated exposure to vibrations and hazards. Weighing all relevant factors, the undersigned finds that claimant's subjective complaints do not warrant any additional limitations beyond those established in the residual functional capacity previously outlined in this decision. This residual functional capacity is based on the entire medical record and adjusted to give the claimant the benefit of the doubt with regard to his allegations of disability.
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).
The vocational expert stated that the claimant has the following past work: laborer (DOT# 421.687-010, heavy, unskilled, SVP 2); laborer (DOT# 851.383-010, heavy, skilled, SVP 5); tire repairer (DOT# 915.684-010, heavy, semi-skilled, SVP 3); and semi-truck driver (DOT# 904.383-010, medium, semi-skilled, SVP 4) (Exhibit 25E).
In response to my questions that assumed the existence of a hypothetical individual of the claimant's age, education, past relevant work experience and residual functional capacity, the vocational expert testified that such an individual could not perform any of the claimant's past work. The undersigned accepts the vocational expert's testimony and finds that the claimant is not capable of performing his past relevant work
7. The claimant... was 45 years old, which is defined as a younger individual age 18-49, on the amended alleged disability onset ...

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