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Hogsett v. Astrue

September 28, 2009

SAMUEL HOGSETT, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Proud, Magistrate Judge

ORDER

Pursuant to 42 U.S.C. § 405(g), plaintiff Samuel Hogsett, represented by counsel, is before the Court seeking review of the final decision of the Social Security Administration denying his Disability Insurance Benefits (DIB) pursuant to 42 U.S.C. § 423, or even a Period of Disability (POD) pursuant to 42 U.S.C. § 416(i). (Doc. 2). In addition to submitting the administrative record (Doc. 14 (hereinafter "R.")), plaintiff and defendant have fully briefed their positions. (Docs. 18 and 21).

Plaintiff Hogsett's physical ailments are not in dispute, per se. Rather, this appeal centers around the sufficiency of the evidence and legal analysis by Administrative Law Judge ("ALJ") Thomas C. Muldoon. More specifically, plaintiff argues that:

1. The ALJ's decision is not supported by substantial evidence;

2. The ALJ did not give adequate weight to Dr. Vest and Dr. Tippett's opinions, which reflected that plaintiff could only perform physical activity at less than a sedentary level;

3. The ALJ failed to properly analyze the physical and mental demands of plaintiff's past work, per SSR 82-62;

4. The ALJ misclassified plaintiff's past work as "light," when it was "medium" as performed; and

5. Based on plaintiff's age, limited education and proper residual functional capacity, he should be deemed disabled.

(Docs. 2 and 18).

Overview of the Evidence and the Relevant Procedural History In January 2005, plaintiff applied for DIB, alleging the onset of disability as of January 28, 2003, due to a back injury sustained at work. (R. 58-62 and 70). At the time plaintiff was injured, he was 48 years old and had been working as a laborer/packer in the construction industry, which can be characterized as "medium" exertional work, as described by plaintiff-- meaning it required lifting up to 50 pounds. (See R. 77, 144, 208 and 20 C.F.R. § 1567). Plaintiff's self-described work history includes two other relevant jobs: ((1) assembler, requiring lifting up to 10 pounds, sitting for 30 minutes out of the day, and standing, walking and bending in all manners throughout the day (R. 78); and (2) truck driver, requiring lifting less than 10 pounds, sitting for six and a half hours per day, walking and standing for one and a half hours each, climbing for three and a half hours, and kneeling, crouching and reaching for 30 minutes to an hour (Doc. 80).

On February 10, 2003, shortly after injuring his back, plaintiff was examined by Dr. Bob R. Burris, M.D. (R. 144-145). At that time, plaintiff complained of lumbar discomfort, radiating down his left leg. Plaintiff rated his pain as 10 on a 0-10 scale, for which he had been taking Tylenol. A straight leg raise test was negative, and x-rays showed only mild degenerative changes. Plaintiff was diagnosed with a lumbar strain with radiculopathy. Physical therapy, Darvocet and Flexeril were prescribed; and plaintiff was instructed not to lift more than 15 pounds, and to refrain from bending, lifting, kneeling and climbing. However, an MRI taken February 18, 2003, revealed disc desiccation at L5-S1; disc bulging mildly at L3-L4, minimally at L2-L3 and L4-L5 and L5-S1; and minimal bilateral lower facet degenerative changes. (R. 153). The MRI confirmed that there was no disc herniation or impingement. (R. 153). An EMG showed only a mildly abnormal delay in the left posterior tibial motor nerve conduction velocity, consistent with very mild left posterior tibial neuropathy. (R. 154).

In March 2003, plaintiff began treatment with Dr. Bruce T. Vest, M.D. Plaintiff was described as being "somewhat better" than he had been. (R. 159). However, a straight leg raise test was positive on the left side, although plaintiff's strength was 5/5. (R. 160). Like Dr. Burris, Dr. Vest concluded plaintiff had a lumbar strain with left lumbar radiculopathy and disc degeneration at L2-S1. (R. 160). Prednisone was prescribed, and there was hope to wean plaintiff off his narcotic medication. (R. 160). Plaintiff was advised to rest, avoid strenuous activity and see a chiropractor. (R. 160). Dr. Vest foresaw plaintiff returning to work in early April, 2003. (R. 160).

When plaintiff saw Dr. Vest on April 22, 2003, plaintiff was using a cane, and continued to have tenderness in his spine with left leg involvement, although his strength was still 5/5. (R. 161). Plaintiff was told to take Ibuprofen and to wean off the Darvocet and Flexeril. (R. 161). In May 2003, sacroiliac pain was noted. (R. 162). And, on June 3, 2003-- just over five months post injury-- Dr. Vest released plaintiff to return to regular duty at work. (R. 163 and 184).

Plaintiff's lumbar strain was characterized as "resolving," his left sacroiliac joint was non-tender (helped by a steroid injection), but efforts to wean plaintiff from Darvocet and Flexeril continued. (R. 163).

In July 2003, plaintiff reported increased pain, and in August he described the pain as severe at times. (R. 165). The straight leg raise test was positive and plaintiff's gait was mildly antalgic on the left side. (R. 165). Plaintiff told Dr. Vest that he was not working because he had been terminated, but that he was looking for work. (R. 165). Dr. Vest opined that he thought it would be difficult for plaintiff to be working, and he recommended additional steroid injections. (R. 165). Plaintiff was issued work excuses from that time through the end of 2003 (presumably for purposes of receiving unemployment benefits). (R. 185-190).

Plaintiff received epidural injections through the end of 2003. (R. 194-202). On October 30, 2003, plaintiff reported that he was looking for work. (R. 168). Plaintiff reported improvement in terms of pain, but in December 2003, he rated his pain at eight on a 10 scale, and Dr. Vest deemed plaintiff's condition "chronic," but not requiring surgery. (R. 166-170). Dr. Vest noted that plaintiff's ability to work needed to be determined. (R. 170).

In February 2004 a functional capacity evaluation was performed, indicating plaintiff might be able to function at the sedentary level, walking and standing for only brief periods. (R. 208). The equivocation reflects indications in the test results that plaintiff was making a submaximal effort relative to his left side. (R. 208). At that time, plaintiff sat for ...


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