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Tyree Nunn v. Michael J. Astrue

April 11, 2011


The opinion of the court was delivered by: Andrew J. Wistrich United States Magistrate Judge


Plaintiff filed this action seeking reversal of the decision of the defendant, the Commissioner of the Social Security Administration (the "Commissioner"), denying in part plaintiff's application for Supplemental Security Income ("SSI") benefits. The parties have filed a Joint Stipulation ("JS") setting forth their contentions with respect to each disputed issue.

Administrative Proceedings

Plaintiff applied for SSI benefits on April 20, 2004, alleging that he became disabled as of March 20, 2004. [JS 2]. On June 17, 2008 , the ALJ issued a partially favorable final written hearing decision concluding that plaintiff was disabled from March 10, 2004 through February 28, 2006 due to residual effects of bilateral broken ankles sustained when plaintiff fell from a second story balcony. [AR 15, 18]. The ALJ concluded that plaintiff was not disabled after February 28, 2006 because medical improvement had occurred related to plaintiff's ability to work, giving plaintiff the residual functional capacity ("RFC") for sedentary work with use of a cane for ambulation, occasional operation of foot controls with the left lower extremity, and no exposure to heights. [AR 18]. The ALJ concluded that plaintiff was not disabled after February 28, 2006 because his RFC as of that date did not preclude him from performing a significant number of jobs available in the national economy. [AR 21].

Standard of Review

The Commissioner's denial of benefits should be disturbed only if it is not supported by substantial evidence or is based on legal error. Stout v. Comm'r Social Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006); Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). "Substantial evidence" means "more than a mere scintilla, but less than a preponderance." Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005). "It is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)(internal quotation marks omitted). The court is required to review the record as a whole and to consider evidence detracting from the decision as well as evidence supporting the decision. Robbins v. Soc. Sec. Admin, 466 F.3d 880, 882 (9th Cir. 2006); Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999). "Where the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld." Thomas, 278 F.3d at 954 (citing Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir.1999)).


Medical improvement Plaintiff contends that the ALJ erred in finding that medical improvement occurred, and plaintiff's disability ended, on February 28, 2006. Specifically, plaintiff argues that the ALJ improperly rejected a consultative examining physician's September 2007 opinion that plaintiff needed to use a wheelchair. Plaintiff contends that the examining physician's opinion demonstrates that plaintiff was disabled at least through the date of that opinion under section 1.02 of the Listing of Impairments (the "Listing") due to ankle ankylosis*fn1 and the inability to ambulate without the use of both hands (that is, without using a wheelchair, walker, two canes, or two crutches). See 20 C.F.R. Pt. 404, Subpt. P, App. 1, §§ 1.00B2b, 1.02.

Once a claimant is found disabled under the Social Security Act, a presumption of continuing disability arises. See Bellamy v. Sec'y of Health & Human Servs., 755 F.2d 1380, 1381 (9th Cir. 1985); Mendoza v. Apfel, 88 F.Supp.2d 1108, 1113 (C.D. Cal. 2000). Benefits cannot be terminated unless substantial evidence demonstrates medical improvement in the claimant's impairment such that the claimant is able to engage in substantial gainful activity. See 42 U.S.C. § 423(f); Murray v. Heckler, 722 F.2d 499, 500 (9th Cir. 1983). Although the claimant retains the burden of proof, the presumption of continuing disability shifts the burden of production to the Commissioner to produce evidence to meet or rebut the presumption. See Bellamy, 755 F.2d at 1381.

"Medical improvement" is defined as any decrease in the medical severity of your impairment(s) which was present at the time of the most recent favorable medical decision that you were disabled or continued to be disabled. A determination that there has been a decrease in medical severity must be based on changes (improvement) in the symptoms, signs and/or laboratory findings associated with your impairment(s) (see § 404.1528).

20 C.F.R. §§ 404.1594(b)(1), 416.994(b)(1)(i).

During the April 2007 administrative hearing, the ALJ elicited testimony from a medical expert, Dr. Doren, who testified that plaintiff suffered a dislocation of the ankle joint requiring the placement of screws and a fracture of the proximal fibula in the right lower extremity, and "a pilon fracture, which is a very severe fracture that extends from the distal tibia into the ankle" in the left lower extremity. [AR 231]. Plaintiff's left fracture had been treated with an external fixator, but he had not undergone surgery. [AR 228-230]. Dr. Doren explained that "in general, [pilon fractures] are very, very bad fractures when they are not operated upon and have been treated with the external fixator." [AR 231]. He added that one would "almost expect" that a fusion procedure would be required to "get rid of the pain and solidify the joints so the person could function." [AR 231]. Dr. Doren opined that plaintiff's medical records, the most recent of which dated from November 2004, were insufficient to allow him to formulate an opinion about plaintiff's condition. He recommended that updated medical records, if any, be obtained, and that plaintiff undergo a consultative orthopedic examination. [See AR 225, 228-232].

Plaintiff testified he had received medical treatment for his ankle fractures through an "MIA" (medically indigent adult) program, and that his doctors had "tr[ied] to set [him] up for the ankle fusion" on the left side in 2005, but that he did not undergo the procedure because

I lost the place where I was staying, and I didn't really have anyplace to live at that point as far as to lay up. If I had that bone ankle fusion then he told me that it was going to take several weeks after that if I were to have that operation [sic], and I just didn't have anywhere to go. [AR 227].

At the time of the hearing, plaintiff testified said that he was staying with someone, but still did not have a stable place to live. [AR 229-230]. He said that he was taking Norco, a narcotic painkiller (Norco) prescribed by doctors at Arrowhead Regional Medical Center, and that he used a cane for support and balance. Plaintiff testified that he had been prescribed a wheelchair and also had been given a walker, but "as I slowly healed a little bit I was able to get around more mobile with the cane than the walker." [AR 236-237]. Plaintiff said that he could probably walk 10 or 15 minutes with the cane. [AR 237]. He also said that he experienced frequent lower back pain and swelling in the ...

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