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Phillip Johnson v. Michael J. Astrue

June 2, 2011

PHILLIP JOHNSON, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: VICTOR B. Kenton United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

(Social Security Case)

This matter is before the Court for review of the decision by the Commissioner of Social Security denying Plaintiff's application for disability benefits. Pursuant to 28 U.S.C. §636(c), the parties have consented that the case may be handled by the Magistrate Judge. The action arises under 42 U.S.C. §405(g), which authorizes the Court to enter judgment upon the pleadings and transcript of the record before the Commissioner. The parties have filed the Joint Stipulation ("JS"), and the Commissioner has filed the certified Administrative Record ("AR").

Plaintiff raises the following issues:

1. Whether the Administrative Law Judge ("ALJ") properly considered the medical evidence as contained in the examining opinion of Homayoun Saeid, M.D.; and

2. Whether the ALJ properly considered Plaintiff's testimony.

This Memorandum Opinion will constitute the Court's findings of fact and conclusions of law. After reviewing the matter, the Court concludes that the decision of the Commissioner must be affirmed.

I THE ALJ DID NOT ERR IN EVALUATING THE OPINION OF EXAMINING PHYSICIAN DR. SAEID

On March 7, 2008, at the request of the Department of Social Services, Plaintiff received a complete internal medicine evaluation from Dr. Saeid. (AR 322-336.) In addition to performing a complete physical examination and taking a history, Dr. Saeid completed a "check-off" form provided by the Social Security Administration entitled "Medical Sourced Statement of Ability to Do Work Related Activities (Physical)." In that form, Dr. Saeid checked off "yes" in answer to the question, "Does the individual require the use of a cane to ambulate?" (AR 331.) Nevertheless, in assessing Plaintiff's residual functional capacity ("RFC"), the ALJ did not restrict Plaintiff to ambulation with the use of an assistive device, such as a cane. (AR 23.) Plaintiff claims this is error. (JS at 6.)

The Court's review of all of the medical evidence in the AR reveals that no physician ever opined that Plaintiff required the use of an assistive device to ambulate. The only exception is in the check-off form completed by Dr. Saeid. Looking further, the Court notes that in Dr. Saeid's report (AR 322-326), there is no mention of the need for such a device. Indeed, the physical findings do not support such a conclusion. Dr. Saeid found that Plaintiff had a normal gait, good motor tone with good active motion, strength is 5/5 in all extremities; normal reflex reaction in the biceps and knee jerks, and that Plaintiff is able to stand on his heels and toes and perform gait. Indeed, Dr. Saeid assessed that Plaintiff is capable of lifting and carrying 50 pounds occasionally and 25 pounds frequently, and can stand and walk six hours in an eight-hour day, and sit for six hours in an eight-hour day. (AR 326.)

The question arises, then, whether Dr. Saeid's checking of "yes" in answer to the question as to whether Plaintiff requires a cane to ambulate, is a typographical or inadvertent error. The evidence overwhelmingly supports an affirmative answer to that question. First, as noted, Dr. Saeid's written report nowhere mentions that Plaintiff requires an assistive device to ambulate, and in fact, Dr. Saeid reported completely normal findings regarding Plaintiff's ability to ambulate. Further, Plaintiff never complained to Dr. Saeid that he had any problem walking, and there is no indication that he utilized a cane or other device during the examination. Further, the check-off form itself requires further answers if the first answer is yes. Dr. Saeid provided no further answers to such questions as, how far can the individual ambulate without the use of cane, is the use of a cane medically necessary, and, without a cane, can the individual use his or her free hand to carry small objects. In addition, the form provides a space for the examiner to notate the particular medical of clinical findings and symptoms which support the assessment, and why the findings support the assessment. Again, this was left blank. (See AR at 331.)

The Court also notes that Dr. Saeid made another error in the check-off form, which would support an inference that he paid little attention to it, and that the reference to the need for use of a cane is an inadvertent error. That is, when assessing Plaintiff's ability to lift and carry, he checked off "occasionally" next to the section which contains limitations to 21 to 50 pounds. This is consistent with his diagnostic report; however, the next section indicates that Plaintiff is only capable of frequently carrying 11 to 20 pounds. (AR 330.) This is inconsistent with Dr. Saeid's diagnostic report, in which he indicates that Plaintiff can lift and carry 25 pounds frequently.

In addition to the inconsistencies between the check-off form and Dr. Saeid's own examination, no such medical assessment was made in another examination by a different physician, Dr. Klein, who performed a comprehensive internal medicine evaluation on April 26, 2006, at the request of the Department of Social Services. (AR 154-159.) In this report, Dr. Klein made detailed observations about Plaintiff's gait, which are worth repeating:

"[Plaintiff] is able to change position and get on and off examining table without difficulty. Gait is normal; it is not unsteady or unpredictable. Heel to toe walking unaffected. Squatting and rising within normal limits. No assistive aid is ...


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