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Luther v. Astrue

September 1, 2010

LLOYD LUTHER, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY OF THE UNITED STATES OF AMERICA, 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 applications under Titles II and Title XVI of the Social Security Act, 42 U.S.C. §§ 1381 et seq. ("Act").*fn1 In his motion for summary judgment, plaintiff principally contends that the Administrative Law Judge ("ALJ") in this case erred by: (1) failing to credit all of plaintiff's severe impairments; (2) failing to develop the record; (3) failing to credit plaintiff's statements without clear and convincing reasons for doing so; and (4) failing to show that plaintiff could perform substantial gainful work that exists in the national economy. (Dkt. No. 19.) The Commissioner filed a cross-motion for summary judgment. (Dkt. No. 20.)

After careful consideration of the entire record, the arguments presented, and for the reasons stated below, the court denies plaintiff's motion for summary judgment and grants the Commissioner's cross-motion for summary judgment.

I. BACKGROUND

A. Procedural Background

On September 15, 2005, plaintiff filed a Title II application for a period of disability and disability insurance benefits. (Administrative Transcript ("AT") 10, 60-62.) He also protectively filed an application for Title XVI Supplemental Security Income ("SSI") benefits. In both applications plaintiff alleged disability beginning September 29, 2000, but subsequently amended that allegation to allege an onset date of September 7, 2003. (AT 10.)

The Social Security Administration denied plaintiff's application initially on April 13, 2006, and upon reconsideration on November 14, 2006. (AT 10, 39-43, 48-52.) Plaintiff timely filed a request for a hearing by an ALJ on December 26, 2006. (AT 10.) Plaintiff appeared and testified at a hearing held on September 26, 2007, before the ALJ assigned to this action. (AT 10, 269-303.)

In a decision dated March 28, 2008, the ALJ denied plaintiff's application for benefits. (AT 7-21.) The ALJ found that plaintiff had the residual functional capacity ("RFC") to perform certain light work and therefore was not under a disability within the meaning of the Act.*fn2 (AT 15.) The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review. (AT 3-5.)

B. Summary of Relevant Medical History and Evidence

The facts of the case are set forth in detail in the transcript of proceedings and are briefly summarized here. As alleged by plaintiff in his motion for summary judgment, plaintiff suffers from a variety of conditions that cause symptoms including severe pain, shortness of breath, anxiety, migraines, weakness in the lower extremities, impaired balance, manipulative limitations, postural limitations and the need to take daily naps. (Dkt. No. 19 at 5.) Plaintiff's medical records reveal that he has had several medical problems with his back, namely his spine and discs, and that he suffers pain as a result. (See AT 255-56.) On June 6 and June 20, 2001, plaintiff received epidural steroid injections to help manage his pain. (AT 255-59.) Plaintiff testified that he experienced some mental impairments as well, namely panic attacks. (AT 284- 85.) He stated that he had not received any psychological treatment, but was taking medication. (AT 286-88.) Plaintiff testified that he was also diagnosed with asthma and obesity, and that he was being tested for diabetes. (AT 290.) Plaintiff testified that he could stand for a little over 30 minutes before he had to sit down and put his legs up in the air or lie down and pull himself into a ball. (AT 292.) He stated that his doctor had prescribed him a walker but that he preferred to use a cane. (AT 294.) Plaintiff testified that he also frequently fell and stumbled around his house. (AT 294.) Plaintiff stated that he had difficulty lifting things such as a gallon of milk. (AT 294.)

Two Social Security consultative physicians examined plaintiff. (AT 128, 216). Both of those physicians determined that plaintiff would be able to stand and/or walk for six hours in an eight hour day.*fn3 (AT 132, 220). One physician found that plaintiff could lift and/or carry up to 20 pounds occasionally and 10 pounds frequently. (AT 220-21). The other examining physician found that plaintiff could lift and/or carry 50 pounds occasionally and 25 pounds frequently. (AT 132.) Both physicians found that certain postural limitations were appropriate in light of plaintiff's pain and other medical conditions. (AT 132, 221.)

Plaintiff's treating physician's office issued a residual functional capacity assessment, completed by physician's assistant Nina Weese ("PA Weese"). (AT 183.) PA Weese stated that plaintiff could lift less than 10 pounds occasionally and frequently, stand or walk a total of 25 minutes in an eight-hour workday, sit a total of three hours in an eight-hour workday, at 30-minute intervals, and that his pushing and pulling was limited to 90 degrees in his upper extension (with pain) and that he walked with effort. (AT 183.) PA Weese further stated that plaintiff could never climb stairs or ramps, balance, stoop, kneel, crouch or crawl. (AT 187.) PA Weese assessed plaintiff with additional exposure limitations and limitations on his handling capabilities. (AT 186.) Finally, she stated that plaintiff would be absent from work due to his impairments the majority of the time, approximately 20 work days per month. (AT 186.)

During plaintiff's ALJ hearing, he was represented by counsel and testified on his own behalf. (AT 271-303.) Plaintiff testified regarding his work history, namely his former general labor jobs, as a cook at a fast food restaurant and as a driver at the Purple Heart Veteran's outlet. (At 273-76.) Plaintiff stated that he was injured on that job, was given a desk job instead, and was ultimately let go in March 2001. (AT 275.) Plaintiff filed a workers' compensation case and received a cash settlement on his workers' compensation claim. (AT 279.) Plaintiff was offered surgery on his back but declined to have it performed. (AT 281.)

Plaintiff stated that once his workers' compensation payments ceased he looked for available positions, but found none. (AT 295.) He testified that he slept poorly, and took two naps a day. (AT 296.) He testified that he needed help from his wife getting dressed and that he would not be able to get to work at a regular time, such as 9 a.m., because he never knew how he would feel. (AT 298). Plaintiff also testified that he suffered from migraines, and that he could not do household chores. (AT 292.) He stated that his only requirement every day was to "make sure the grandkids get home," and to drive to and pick up one grandchild from school about two miles away from his house. (AT 301.) Plaintiff stated that he was in pain upon returning from this trip and that he took medications for that pain. (Id.)

The ALJ concluded the hearing by ordering an internal consultative evaluation that focused on plaintiff's asthma, COPD (chronic obstructive pulmonary disease), obesity and degenerative disc disease of the neck and back. The ALJ advised plaintiff to follow-up with a psychiatrist regarding his panic attacks, but stated that he, the ALJ, was going to focus more on the physical issues. (AT 302-03.)

C. Summary of the ALJ's Findings

The ALJ conducted the required five-step evaluation and concluded that plaintiff was not disabled within the meaning of the Act. At step one, the ALJ concluded that plaintiff had not engaged in substantial gainful activity since September 7, 2003, plaintiff's alleged onset date. (AT 12-14.) At step two, the ALJ concluded that plaintiff had the following severe impairments: "degenerative lumbar disc disease, cervical disc disease with a posterior tear at C4-5, and obesity." (Id.) At step three, the ALJ determined that plaintiff's impairments, whether alone or in combination, did not meet or medically equal any impairment listed in the Commissioner's Listing of Impairments in the applicable regulations. (AT 24.) The ALJ further determined that plaintiff was unable to perform any of his past relevant work. (AT 19.) However, the ALJ found, considering the claimant's age, education, work experience and RFC that there were jobs that exist in significant numbers in the national economy that the plaintiff can perform. (AT 20.) He found that plaintiff ...


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