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Osborne v. Astrue

June 4, 2010

GERALD RAY OSBORNE, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner" or "defendant") denying plaintiff's application for Disability Insurance Benefits under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381 et seq. ("Act"). In his motion for summary judgment, plaintiff principally contends that the Administrative Law Judge ("ALJ") in this case erred by: (1) failing to develop the record; (2) failing to properly evaluate and credit the third party statement of plaintiff's son; and (3) failing to secure the testimony of a vocational expert. (Dkt. No. 18.) The Commissioner filed a cross-motion for summary judgment. (Dkt. No. 21.)

For the reasons stated below, the court denies plaintiff's motion for summary judgment and grants the Commissioner's cross-motion for summary judgment.*fn1

I. BACKGROUND

A. Procedural Background

On September 30, 2004, plaintiff filed an application for Supplemental Security Income ("SSI") benefits, alleging a disability onset date of May 1, 1994 (Administrative Transcript ("AT") 20.) The Social Security Administration denied plaintiff's application on February 16, 2005, and upon reconsideration on March 24, 2005. (AT 20, 59-64.) The Social Security Administration notified plaintiff that in order to qualify for SSI payments based on disability, his health problems must (1) keep him from doing any kind of substantial work, even part-time and (2) last or be expected to last for at least 12 months in a row or result in death, and found that his "condition [was] not severe enough to keep [him] from working." (AT 59-60.) Plaintiff timely filed a request for a hearing by an ALJ on May 31, 2005. (AT 70.)

Plaintiff's hearing was scheduled for April 27, 2006. (AT 20.) Plaintiff failed to appear at the hearing. (Id.) It was subsequently discovered that plaintiff was incarcerated at the time of the hearing. (Id.) The hearing was rescheduled for December 12, 2006, but plaintiff failed to appear at that hearing. (Id.) The Social Security Administration issued an Order to Show Cause for failing to appear. (Id.) Plaintiff responded to the notice, stated that he had been homeless and thus did not receive the hearing notice, and another hearing was scheduled for March 14, 2007. (Id.) Plaintiff appeared at this hearing. (Id.) However, this hearing was postponed in order for claimant to obtain legal representation. (Id.) A hearing date of May 14, 2007 was set, but plaintiff's newly retained counsel informed the ALJ's office that plaintiff would be unable to attend due to a family emergency. (Id.) The hearing was rescheduled for August 6, 2007. (Id.) Plaintiff did not appear at the hearing. Plaintiff's counsel, who did appear, informed the ALJ that he had lost contact with his client and that plaintiff's son had also lost contact with the plaintiff. (Id.) The ALJ concluded that the plaintiff was not an essential witness to the hearing and subsequently issued a written ruling. (Id.)

In a decision dated September 5, 2007, the ALJ denied plaintiff's application for SSI benefits. (AT 20-28.) The ALJ found that plaintiff had the residual functional capacity to perform certain light work and therefore was not disabled within the meaning of the Act.*fn2 (AT 25.) The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review. (AT 5-7.)

B. Summary of Relevant Medical History and Evidence

At the time of the hearing before the ALJ, plaintiff was 49 years old. (AT 50.)

Plaintiff has no prior work history. (AT 101-08, 115.) Plaintiff contended that anti-social behavior, neck pain, back pain, right hand problems and anxiety attacks have prevented him from working since May 1994. (AT 22.)

On September 19, 2004, plaintiff was released from prison on parole after serving 89 months in prison for possession of cocaine. (AT 23.) Plaintiff filed an application for disability benefits eleven days later. (AT 20.) Plaintiff had a history of seven prison terms for various offenses including burglary, robbery, possession of stolen property and drug charges. (Id.)

On December 13, 2004, plaintiff underwent a psychiatric evaluation by Dr. Michael Joyce, M.D. (AT 203.) Dr. Joyce reported that plaintiff's chief complaint was "[t]rying to stay out there." (Id.) Plaintiff told Dr. Joyce that he did not have any major mood complaints, psychotic symptoms, mania or panic attacks. (AT 23.) Dr. Joyce reviewed plaintiff's extensive criminal history and use of heroine and cocaine. (Id.) Plaintiff reported that his mother was murdered and his father was at least at some point in federal prison. (AT 204.) Dr. Joyce noted that since leaving prison, plaintiff had been living with his son and his son's girlfriend, and sleeping on the couch. (AT 205.) Plaintiff reported that he had never been employed, either full-time or part-time. (Id.) Dr. Joyce listed the following diagnoses:

DSM-IV Diagnoses

Axis I: Intravenous heroin dependence, reportedly in one-year remission. Methamphetamine addiction, reportedly in two-year remission. No evidence for a primary mood, thought, or anxiety disorder at this time.

Axis II: History of antisocial behavior which does not appear grossly active at this time.

Axis III: Neck pain.

Axis IV: On parole and randomly drug tested.

Axis V: GAF = 65-75.*fn3 (AT 206.)

Dr. Joyce found that "[w]ith sustained sobriety, the claimant does appear capable of completing a workday and workweek without interruption from a definitive AXIS I condition." (AT 207.) He listed plaintiff's prognosis as "guarded." (Id.)

On December 18, 2004, plaintiff completed an orthopedic evaluation with Dr. Natham Pliam, M.D., Ph.D. (AT 208.) Dr. Pliam recorded plaintiff's chief complaints as low back pain with radiation to the right leg, neck discomfort and right hand numbness. (Id.) Plaintiff reported a seven month history of lower back pain and a 3 year history of numbness of the radial aspect of his right hand including mainly his thumb and index finger. (Id.) Plaintiff stated that he saw a doctor seven months prior to his visit with Dr. Pliam, when he was incarcerated, but that he did not currently have access to medical follow-up treatment. (Id.) Dr. Pliam noted that plaintiff has hepatitis C. (AT 209.) Dr. Pliam reviewed medical records, including an x-ray report of plaintiff's spine which "indicated narrowing at C4-5 with foraminal encroachment, posterior spurring and eburnation at C4-5. The spurring was present at C5 and C6, as well." (Id.) Dr. Pliam diagnosed plaintiff with "degenerative cervical spondylosis and probable right C6 radiculopathy, probable right sciatica, chronic low back pain, and rule out degenerative lumbar ...


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