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Sean G. Tracey v. Michael Astrue

March 14, 2011

SEAN G. TRACEY,
PLAINTIFF,
v.
MICHAEL ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

ORDER REVERSING COMMISSIONER'S DECISION AND REMANDING FOR FURTHER PROCEEDINGS

Plaintiff Sean G. Tracey, proceeding in forma pauperis, by his attorneys, Law Offices of Lawrence D. Rohlfing, seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying his application for disability insurance benefits (DIB) under Title II of the Social Security Act and for supplemental security income ("SSI"), pursuant to Title XVI of the Social Security Act (42 U.S.C. § 301 et seq.) (the "Act"). The matter is currently before the Court on the parties' cross-briefs, which were submitted, without oral argument, to the Honorable Sandra M. Snyder, United States Magistrate Judge.*fn1 Following a review of the complete record and applicable law, this Court concludes that fact finding errors in the Administrative Law Judge's written decision go to the heart of the disability determination, requiring reversal and remand for supplemental proceedings in accordance with this decision.

I. Administrative Record

A. Procedural History

On October 10, 2006, Plaintiff filed for Title II disability insurance benefits and for supplemental security income pursuant to Title XVI, alleging disability beginning August 17, 2002. AR 169. His claims were denied initially, and upon reconsideration, on December 11, 2006. AR 169. On December 23, 2006, Plaintiff filed a timely request for a hearing. AR 169. Plaintiff appeared and testified at a hearing on March 10, 2009. AR 141-161. On March 27, 2009, Administrative Law Judge Edward C. Graham ("ALJ") denied Plaintiff's application. AR 169-176. The Appeals Council denied review on July 15, 2009. AR 1-3. On August 27, 2009, Plaintiff filed a complaint seeking this Court's review (Doc. 1).

I. Agency Record

From 1999 to 2002, Plaintiff (born June 16, 1974) worked intermittently as a pizza prep cook, janitor, motel desk clerk, garbage collector, appliance installer, grill cook, and laborer for a firewood company. On August 18, 2002, he fractured his back and right pelvis in a two-story fall from a rooftop. Physicians performed surgery, inserting plates and pins to reconstruct the pelvis and hip joint. Thereafter, Plaintiff's right leg was shorter than his left, he walked with a pronounced limp and depended on a cane, and he suffered from chronic severe pain, habituating to multiple narcotic and non-narcotic pain relievers.

In 2004, Plaintiff had seasonal work as a ski store sales clerk. He also secured a CDL Class A license to drive a truck. At various times, he delivered concrete and dropped off roll-off dumpsters. He was fired from several jobs for "blowing up at people" and getting into fights. In May 2004, he experienced a back injury at work.

On July 28, 2005, Plaintiff fell from his bicycle, suffering a right hip contusion and exacerbating his pain.

By October 31, 2005, Plaintiff's reconstructed pelvis was failing. He experienced severe pain; could not walk more than five or ten minutes, even with a cane; could not sit comfortably; was unable to sleep; and struggled with personal care, such as putting on shoes and socks.

X-rays administered to Plaintiff's back on January 24, 2006, revealed an old partial compression fracture at L1, and mild disc bulges at L3-4, L4-5, and L5-S1. Radiologist John Montin, M.D. diagnosed "mild spondylosis and osteoarthritis L4-5-S1 with slight disc bulges, no focal disc herniation, and no significant stenosis." Right hip and pelvis x-rays showed no changes since the last x-rays but suggested early arthritic changes. In or about March 2006, physicians replaced Plaintiff's right hip.

Also in 2006, Plaintiff received treatment at Inyo County Health and Human Services for emotional difficulties, including anger and anxiety. He sought help after an altercation with his roommate left him homeless, explaining that he did not understand his anger episodes, which frightened him. His depression was significant. He was drinking heavily and using marijuana and tobacco, but was unable to acknowledge a substance abuse problem. As a child, Plaintiff's family was abusive and dysfunctional. Treating records noted his pain was a contributing factor to his emotional difficulties.

Although Plaintiff initially did well with the hip replacement, by October 2006, he was suffering intractable pain. Sitting, standing, and walking produced pain so great that it was only relieved when Plaintiff lay down and took ever-stronger medications.

Plaintiff described pain in his lower back and right hip radiating down his right leg. Only hot soaks and narcotics reduced the pain. Physical examination revealed diminished tone and strength in his right leg, antalgic gait,*fn2 dependence on his cane, decreased range of spinal motion, and an inability to walk on his heels or his toes. X-rays of his right pelvis and spine revealed post-surgical and post-traumatic changes.

In December 2006, agency physician A. Aram completed a psychiatric review technique, finding no medically determinable impairment. Aram noted Plaintiff's history of anger management problems and medical reports of anxiety, but no psychiatric diagnosis from an acceptable source. There were no records of psychiatric hospitalizations or periods of decompensation. Records indicated Plaintiff had received high school equivalency in special education.

On December 11, 2006, S. Shifflet, M.D., a non-examining agency physician opined that Plaintiff could lift and carry ten pounds occasionally and less than ten pounds frequently; stand or walk for two hours in an eight-hour work day; and could sit up to six hours in a work day. Shifflet considered Plaintiff able to perform sedentary jobs with postural limitations. Shifflet emphasized Plaintiff's drug and alcohol problems.

In August and September 2007, Plaintiff was taking prescription morphine and undergoing physical therapy intended to produce pain relief. In November 2007, Plaintiff began treatment at a pain management facility, with treatment coordinated by Family Nurse Practitioner Sandra Spiedel.

By the end of November 2007, Plaintiff's ability to ride his bicycle had dropped from three miles daily to three miles three times per week. Certain movements produced sharp pain. His hip motion was very limited, and he limped with an antalgic gait. Pain repeatedly interrupted his sleep. A December 2007 x-ray revealed post-surgical and post-traumatic changes to Plaintiff's right hip. A lumbar spine x-ray revealed a stress fracture in Plaintiff's lower back and an old compression fracture. On January 16, 2008, Plaintiff was diagnosed with chronic pain syndrome.*fn3

By the end of February 2008, although he continued to require morphine, Plaintiff's gait and muscle tone had improved, although his right leg remained weak. Spiedel noted that Plaintiff had stopped Seroquel*fn4 and counseling, expressing frustration with the system and reporting "scary" side effects (sleep walking and sleep eating) from the medication.

He continued to improve in March and April. By the end of April, he had resumed his regular biking routine. Records from May 28, 2008, continued to report chronic pain syndrome, and Plaintiff's right hip surgery was considered to have failed.

On July 24, 2008, Spiedel opined that Plaintiff could lift and carry up to five pounds both frequently and occasionally; could stand or walk for less than one hour in an eight-hour work day; could sit approximately three hours in a work day; and would need to lie down and rest hourly in a work day. Plaintiff could not walk continuously for ...


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