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SKINNER v. BARNHART

October 5, 2005.

HOLLIS SKINNER, Plaintiff,
v.
JO ANNE B. BARNHART, Commissioner of Social Security, Defendant.



The opinion of the court was delivered by: RUBEN BROOKS, Magistrate Judge

REPORT AND RECOMMENDATION RE GRANTING, IN PART, PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT [DOC. NO. 10] AND DENYING DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT [DOC. NO. 17]
Plaintiff Hollis Skinner seeks judicial review of Social Security Commissioner Jo Anne B. Barnhart's determination that he is not entitled to disability benefits. On June 20, 2005, Skinner filed his Motion for Summary Judgment [doc. no. 10] and Memorandum of Points and Authorities in Support of Motion [doc. no. 11], requesting reversal of Administrative Law Judge ("ALJ") Albert Tom's March 28, 2003, finding that he was not disabled. Plaintiff argues that the ALJ erred by improperly relying on the responses of a vocational expert to an incomplete hypothetical question. (Pl.'s Mem. at 11.) Skinner asks the Court to reverse the ALJ's decision or remand the case to a different ALJ for further proceedings. (Id. at 13.) Plaintiff also requests an award of attorney's fees pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C.A. § 2412 (West 1994 & Supp. 2005). (Id.)

On August 22, 2005, the Commissioner filed her cross-motion for summary judgment, arguing that the findings of the ALJ should be affirmed [doc. no. 17].

  I. BACKGROUND

  Plaintiff was sixty-one years old, qualifying as a "person of advanced age," at the time of the ALJ's decision. (Admin. R. at 21); 20 C.F.R. § 404.1563(e) (2003). He is currently sixty-four. (See Admin. R. at 70.) Skinner has a college degree in sociology. (Id. at 137.) He served in the army for three years and has worked in the past as an industrial specialist, corrections officer, corrections case manager, golf ball inspector, and assembly line worker. (Id. at 21, 137-42, 145.) Skinner has not engaged in substantial gainful employment since June 26, 2001, although he was working part-time taking surveys for a marketing company at the time of the administrative hearing. (Id. at 21, 143.)

  Plaintiff filed an application for disability insurance benefits on April 16, 2002, claiming disability based on a back disorder, patellofemoral narrowing in both knees, bilateral upper leg disorder, tinnitus, and hearing loss. (Id. at 54-56, 61.) The claim was denied on May 30, 2002. (Id. at 30.) Skinner filed a request for reconsideration on June 25, 2002, which was denied on October 24, 2002. (Id. at 34-35.) Plaintiff filed a timely request for an administrative hearing on November 5, 2002. (Id. at 39.) Administrative Law Judge ("ALJ") Albert Tom conducted a hearing on February 12, 2003. (Id. at 133.) Skinner was represented at the hearing by attorney David M. Shore. (Id.) John Kilcher, M.A., a vocational expert, testified regarding Plaintiff's ability to work. (Id. at 51, 133.) On March 28, 2003, Judge Tom issued his decision denying Skinner's application for benefits. (Id. at 27.) Plaintiff requested review of the decision on April 30, 2003. (Id. at 11.) The Appeals Council denied the request on October 4, 2004. (Id. at 4.)

  II. MEDICAL EVIDENCE

  The earliest medical evidence in the record is a note dated March 17, 2000. (Id. at 94.) Dr. Chris Guerin, a doctor of internal medicine, wrote that Plaintiff was seen by his office on February 21, 2000, and March 17, 2000, for right knee pain. (Id.) Dr. Guerin referred Skinner to an orthopedic specialist. (Id.) However, there are no records of any orthopedic examination performed prior to May 2002. (See id. at 95.)

  On May 10, 2002, at the request of the Department of Social Services, Dr. Thomas R. Dorsey performed an orthopedic consultation. (Id.) Skinner's chief complaint was lower back pain with bilateral lower extremity pain radiating to his feet. (Id.) He also complained of bilateral knee pain with swelling, clicking, and popping. (Id.) He reported that the pain was worse when bending or lifting, but he used no assistive devices, such as crutches, a cane, or a brace. (Id.) Dr. Dorsey's report also indicated that Plaintiff suffered from hypertension and prostate problems. (Id.) Despite Skinner's complaints of low back pain, the doctor found no evidence of splinting or spasm in Plaintiff's lumbar spine, and he found the range of motion for Skinner's cervical and lumbar spine was normal. (Id. at 96.) Skinner's right knee showed a full range of motion, with crepitus (crackling sound), diffuse tenderness, and bony swelling medially. (Id.); Stedman's Medical Dictionary 409 (Marjory Spraycar et al. eds., 26th ed. 1995). Plaintiff's left knee showed a full range of motion, with crepitus and diffuse tenderness but no swelling. (Admin. R. at 97.) X-rays showed slightly decreased medial joint space with moderate patellofemoral narrowing and osteophyte (bony outgrowth) formation on the patella in both knees. (Id. at 97-98); Stedman's Medical Dictionary, supra, at 1270. An x-ray of Skinner's lumbar spine showed a markedly decreased L4-L5 disc space. (Admin. R. at 98.) Dr. Dorsey diagnosed Plaintiff with moderate degenerative joint disease in both knees and mild degenerative disc disease of the lumbar spine. (Id.) He opined that with these impairments Skinner could lift, carry, push, or pull twenty pounds occasionally and ten pounds frequently, stand and walk for four hours out of an eight-hour workday, and occasionally stoop and crouch. (Id.)

  On May 23, 2002, medical consultant Dr. G.E. Tiedeman completed a Physical Residual Functional Capacity Assessment. (Id. at 101-08.) The assessment was based on a primary diagnosis of degenerative joint disease of the knees and a secondary diagnosis of degenerative disc disease of the lumbar spine. (Id. at 101); Neil M. Davis, Medical Abbreviations: 10,000 Conveniences at the Expense of Communications and Safety 63, 66 (7th ed. 1995). Dr. Tiedeman concluded that Plaintiff could lift and/or carry twenty pounds occasionally and ten pounds frequently, stand and walk for four hours, and sit for six hours in an eight-hour workday. (Admin. R. at 102, 108.) He also concluded that Skinner had occasional postural limitations for climbing, balancing, stooping, kneeling, crouching, and crawling. (Id. at 103.) Plaintiff had no other limitations. (Id. at 104-05.)

  Dr. Tiedeman stated that Skinner's allegations regarding the nature and severity of his symptoms were partially credible and supported by medical evidence, but Plaintiff's contentions regarding the severity of his related functional restrictions were not supported by the record. (Id. at 106.) The doctor stated that a hearing impairment could be ruled out because Skinner was able to converse over the phone. (Id. at 108.) Dr. Joseph Hartman reviewed and affirmed Dr. Tiedeman's assessment on October 24, 2002. (Id. at 108-09.)

  On May 24, 2002, Plaintiff was seen by Dr. Osvaldo Lopez at the VA (Veteran's Administration) Medical Center for a comprehensive exam. (Id. at 129-32.) Skinner reported knee pain and swelling. (Id. at 131.) He denied suffering other problems, including ear pain or discharge, tinnitus, decreased hearing, and back pain. (Id.. at 131-32.) Plaintiff's physical examination was within normal limits. (Id. at 130-31.) He was prescribed ibuprofen (for osteoarthritis), Zantac (for gastroesophageal reflux disease), Viagra (for sexual dysfunction), and a trial of prazosin (for hypertension). (Id. at 130); see Medical Abbreviations, supra, at 91, 153; WebMD Health: Drugs and Herbs, Prazosin HCI Oral, at http://my.webmd.com/drugs/drug-8695-Prazosinᰭ Oral.aspx?. Dr. Lopez also ordered x-rays of Skinner's knees, physical therapy, lab tests, and a sigmoidoscopy (internal examination of the colon). (Admin. R. at 129-30); Medical Abbreviations, supra, at 216; Stedman's Medical Dictionary, supra, at 1614.

  Plaintiff had a physical therapy consultation with Florence Freeland on July 8, 2002. (Admin. R. at 123-26.) Skinner reported a pain level in his knees of five to seven out of ten and stated that his knee pain began in 1963 as the result of an injury suffered while serving in the military. (Id. at 124, 126.) He also reported aching and stiffness in his left knee upon waking in the morning, and the pain sometimes kept him awake at night. (Id. at 124.) Plaintiff stated that sitting or standing for longer than one hour bothered him, and if he stood for too long, his knees would buckle. (Id. at 125.) However, Skinner climbs the thirteen steps in his two-story home and walks nearly one-quarter mile each day without an assistive device. (Id. at 124-25.) Freeland concluded that Plaintiff suffered from osteoarthritis of the medial and patellofemoral joint spaces. (Id. at 124.) His rehabilitation potential was good, and she started him on stretching exercises. (Id. at 123-24.)

  Skinner attended physical therapy again on July 15, 2002. (Id. at 122.) Freeland recommended knee exercises and suggested that Plaintiff elevate the left knee and apply ice when at home to reduce the swelling. (Id.) Skinner did not attend any more physical therapy sessions. (See id.)

  Plaintiff saw Dr. Lopez for a focused appointment on September 10, 2002. (Id. at 122-23.) Dr. Lopez reviewed x-rays of Skinner's knees taken on May 28, 2002, which showed mild osteoarthritis of the medial and patellofemoral joint spaces. (Id. at 110, 122.) Dr. Lopez added Zostrix to Plaintiff's medications to treat the osteoarthritis and increased his Prazosin to twice per day. (Id. at 121.)

  Skinner saw Dr. Lopez again on October 25, 2002. (Id. at 120.) Plaintiff reported knee pain from behind with knee effusion (escape of fluid from blood vessels into tissues or a cavity). (Id.); Stedman's Medical Dictionary, supra, at 547. He also complained of a pain level of eight out of ten. (Admin. R. at 120.) Dr. Lopez recommended Zostrix and physical therapy for Skinner's osteoarthritis. (Id. at 118.)

  At a follow-up appointment on November 20, 2002, Dr. Brent Greenberg noted that Plaintiff had been through two physical therapy sessions and had taken high dose ibuprofen without improvement. (Id.) The pain in Skinner's knees was worse with ambulation, and it was difficult for him to stand from a sitting position. (Id.) However, Plaintiff's knees had no swelling, effusion, locking, or instability. (Id.) McMurray and Lachman tests were negative, indicating there were no injuries to the meniscal structres or deficiency of the anterior cruciate ligament. (Id.); Stedman's Medical Dictionary, supra, at 1780. Dr. Greenberg gave Plaintiff an orthopedic referral for steroid injections. (Admin. R. at 118.)

  On February 11, 2003, Skinner saw Dr. Mongeon at Shadowridge Medical Center for x-rays and lab tests. (Id. at 116-17.) He was diagnosed with osteoarthritis in his knees, the left knee worse than the right, type II diabetes, and hypertension. (Id.) He was told to walk for exercise, lose thirty pounds, and follow a diabetic diet. (Id.)

  III. THE ADMINISTRATIVE HEARING

  A. Plaintiff's Testimony

  Plaintiff testified at the administrative hearing on February 12, 2003. (Id. at 136-75.) He stated that his highest level of education was a college degree in sociology. (Id. at 137.) He received retirement income from a government job he held for thirty-two years until retiring in 1994. (Id.)

  Plaintiff was employed at the time of the administrative hearing by Edimoll, a marketing research firm. (Id. at 143, 171.) He worked at a shopping mall asking people if they would participate in market research surveys. (Id.) Skinner had held this job for a little over two months, and he worked three or four days per week for two to eight hours each day. (Id. at 143-44, 171.) This job required Plaintiff to stand on his feet the entire shift and direct people to a nearby office to complete surveys. (Id. at 143, 171-72.)

  Prior to that job, in November 2002, Skinner worked for Sony through a temporary employment agency doing assembly-line material handling. (Id. at 172-73.) Plaintiff moved and loaded palettes of computers and television screens. (Id. at 145, 173.) His shifts were twelve hours long, and he worked three to four days per week. (Id. at 174.) Skinner testified that this job required him to lift fifty pounds regularly and remain on his feet for the entire twelve hour shift. (Id. at 173-74.) When asked how he managed to stand and walk for twelve hours in a day with his knee problems, Skinner stated that he tried to manage the pain with ibuprofen and resting during breaks, but his legs still felt like they were "locking." (Id. at 174-75.)

  From March to June of 2001, Plaintiff worked in the golf ball inspection department of Callaway Golf. (Id. at 137-38.) After the golf balls were manufactured, they were placed in large drums, and Skinner's job was to move the drums to an inspection area. (Id. at 138.) He did this by placing the full drums on a palette and pulling the palette to the inspection area, where he would remove the drum and put the balls into a machine for inspection. (Id. at 138, 153-55.) The full drums weighed over 3,000 pounds. (Id. at 138.) Plaintiff did not lift the 3,000-pound drums, but he would sometimes have to lift mostly empty drums weighing approximately 200 pounds. (Id.) Skinner stated that while working at Callaway Golf his knees were swollen and strained, but not to a degree that would keep him from working. (Id. at 170.)

  Prior to his job as a golf ball inspector, Skinner worked from June 1998 to August 2000 as a corrections officer in a federal prison. (Id. at 139.) As a corrections officer, Plaintiff was on his feet a majority of the time, walking around the yards and the buildings to check on the prisoners. (Id.) Skinner testified that he was on his feet for eighty-five percent of his shift. ...


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