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Frost v. Astrue

June 22, 2009

DENNIS FROST, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: David G. Bernthal U.S. Magistrate Judge

ORDER

In October 2007, Administrative Law Judge Gerard J. Rickert ("ALJ") denied Plaintiff Dennis Frost's application for disability insurance benefits and supplemental security income. The ALJ based this decision on his finding that while Plaintiff could no longer perform his past relevant work, he could perform other work that exists in significant numbers in the national economy.

In May 2008, Plaintiff filed a Complaint (#5) against Defendant, Michael Astrue, Commissioner of Social Security, seeking review of the ALJ's decision to deny him disability insurance benefits and supplemental security income. In December 2008, Plaintiff filed a Motion for Summary Judgment (#14). In February 2009, Defendant filed a Motion for an Order Which Affirms the Commissioner's Decision (#19). In March 2009, Plaintiff filed a Response to Commissioner's Memorandum in Support of Motion for Summary Affirmance (#20). After reviewing the record and the parties' memoranda, this Court GRANTS Plaintiff's motion for Summary Judgment (#14).

I. Background

A. Procedural Background

In July 2004, Plaintiff filed an application for disability insurance benefits and supplemental security income claiming he became disabled in October 2003 due to neck, back, and knee pain as well as depression. (R. 76.) The Social Security Administration ("SSA") denied Plaintiff's application initially and upon reconsideration. (R. 39, 34.) Plaintiff entered a timely request for a hearing. (R. 31.) The ALJ conducted the hearing in July 2007. (R. 46.) Plaintiff and a vocational expert testified at this hearing. (R. 452.) The ALJ issued an unfavorable decision in October 2007. (R. 10-12.)

The Appeals Council ("AC") denied Plaintiff's request for review in February 2008.

(R. 4-7.) The AC's decision made the ALJ's ruling the Commissioner's final decision. In May 2008, Plaintiff appealed this decision by filing a complaint with this Court pursuant to 42 U.S.C. § 405(g), asking the Court to remand the case to the Commissioner for rehearing.

B. Plaintiff's Background

Plaintiff is 53 years old. He was 47 at the time he applied for social security. (R. 240, 76.) Plaintiff completed school through the 11th grade. (R. 457.) He previously worked as a stocker at Wal-Mart, a sorter at a newspaper business, and a yard helper at Kirchner's Lumber.

(R. 133.)

In May 2003, Plaintiff was working in the lumber yard carrying a piece of masonite when the wind caused the masonite to strike him in the head and neck. (R. 410.) The accident caused him neck pain for which he initially consulted his treating physician Dr. Julian Vassey. (R. 240.) Dr. Vassey sent him for x-rays and physical therapy. (R. 239.)

In September 2003, Plaintiff consulted Dr. Robert Huler and Dr. James Kohlmann for his continuing neck pain. Both doctors agreed that a benign hemangioma (tumor) and a small disc herniation might be causing his neck pain. Both doctors also agreed that he was physically able to perform light work. (R. 161, 413.)

In September 2004, after Plaintiff filed his application for benefits, Dr. Sandra Bilinsky performed a residual functional capacity examination. She also determined that Plaintiff could perform light work. (R. 183-90.)

In March 2005, at the request of the Department of Disability Determination Services, Dr. Stephen Vincent evaluated Plaintiff's mental condition. (R. 191.) Dr. Vincent found Plaintiff oriented to person, place, time, and situation. Dr. Vincent opined that Plaintiff's thought process was logical and relevant, but "somewhat slow and deliberate, interfered with by preoccupation with pain." (R. 192.) Dr. Vincent also stated that Plaintiff's history of chronic pain and depression "make[s] it quite difficult for him to function . . . [and] interfere[s] with his focus and concentration and thinking skills." (R. 192.) Dr. Vincent noted that Plaintiff would be able to manage his own finances. (R. 193.)

In April 2005, Dr. Carl Hermsmeyer completed a Psychiatric Review Technique form to assess Plaintiff's mental capabilities. (R. 166-82.) He found that Plaintiff suffered from a mild restriction in activities of daily living, moderate difficulty in social functioning, moderate difficulty in maintaining concentration, persistence, or pace, and no episodes of decompensation.

(R. 176.) Dr. Hermsmeyer opined that, while none of Plaintiff's symptoms met or equaled any medical listing, they were "more than non severe." (R. 182.) Dr. Hermsmeyer stated that Plaintiff had the capacity to "perform simple one and two-step tasks at a constant pace."

(R. 182.)

In May 2005, Plaintiff began treatment with the Coles County Medical Center ("CCMC") for his depression and suicidal ideations. (R. 402.) He continued treatment with CCMC throughout the relevant period.

In February 2007, Dr. Vassay wrote a letter which was submitted to the Office of Hearings and Appeals. Dr. Vassey stated that Plaintiff was no longer able to perform the heavy lifting necessary for him to work in a lumber yard, but he was able to perform light work.

(R. 409.)

In June 2007, Dr. Howard Levine, Plaintiff's psychologist, wrote a letter expressing his opinion regarding Plaintiff's ability to work full time. Dr. Levine stated that Plaintiff's depression had been worsening during the past 12 months and continued to be resistant to treatment. Dr. Levine opined that Plaintiff's depression would significantly impair his ...


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