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Scott v. Astrue

April 7, 2010

ERNEST E. SCOTT, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, DEFENDANT.



The opinion of the court was delivered by: Michael M. Mihm United States District Judge

ORDER

This matter is now before the Court on Plaintiff's Motion for Summary Reversal and the Commissioner's Motion to Affirm. For the reasons set forth below, Plaintiff's Motion for Summary Reversal [#8] is GRANTED, and the Commissioner's Motion to Affirm [#11] is DENIED. This matter is REMANDED for further proceedings consistent with this Order.

BACKGROUND

Plaintiff, Earnest Scott ("Scott"), was 46 years' old at the time of his administrative hearing. (R689) He is 6'3" and weighs approximately 369 pounds. Id. Scott has a high school diploma and took less than a full semester of college courses. (R692-93) He is divorced and lives with his girlfriend, her daughter from a previous marriage, and their daughter together. (R689-90) In the past, Scott has been employed as a deejay, a repossession agent, an auto parts salesman, a delivery driver, a forklift operator, a back room parts manager, and an assistant manager in another auto parts store. (R695-97, 718) He last worked as a managerial employee for NAPA Auto Parts in July 2004, pulling orders off trucks, stocking shelves, helping customers, controlling inventory, and money management control. (R693)

On April 4, 2005, Scott applied for supplemental security income ("SSI") and disability insurance benefits ("DIB"), alleging disability that began on June 1, 2004. (R88-90, 586-88) His application was denied both initially and on reconsideration. (R55-59, 47-50) Scott requested a hearing before an administrative law judge ("ALJ"). A hearing was held before ALJ Alice Jordan on March 4, 2008, at which Scott, who was represented by counsel, and vocational expert ("VE") Bob Hammond appeared and gave testimony. (R684-727) During this hearing, Scott amended his onset date to July 1, 2005. (R688)

Scott testified that on a typical day, he gets up between 5:00 and 7:00am, stretches, and goes to the kitchen to make coffee. (R697-98) He has to urinate frequently due to his diabetes. (R698) He can do a load of dishes, then has to sit or lay down for a bit before he can get back up. Id. Scott does not do the laundry, vacuuming, or other household chores and rarely cooks. (R698-99) He is able to drive, but does not belong to social clubs or churches or go out visiting very often because he gets too tired. (R699) He sometimes watches television or naps for four to five hours each day. (R699, 711) He occasionally plays a game of solitaire or a computer game, but he can't sit, stand, or lay in one place for very long at a time. (R700)

Scott can grocery shop once every three weeks, but only does it if he has to. Id. He used to mow the lawn, but now his girlfriend does most of the mowing. (R700-01) In the past, he enjoyed working on cars but hasn't been able to do that for years. (R701) He doesn't go for walks, as his doctors have advised him to walk as little as possible to avoid further damage to his knees. Id. Scott is able to care for his own personal hygiene and smokes about a pack of cigarettes a day. (R702) His girlfriend sometimes has to put his socks on for him. (R714)

When asked to describe why he feels he can't work, Scott responded that he has a lot of pain, has a screw in his left foot, suffers from arthritis in his neck, has a torn rotator cuff in his shoulder, has golfer's elbow and carpal tunnel syndrome on his left side, and has extreme difficulty getting up and down because of his knees. (R702-04, 706) He has back problems that prevent him from standing for too long or his legs go numb. (R704) The medicines that he takes have also caused erosions in his stomach. Id. As a result of diabetes, he suffers from numbness and tingling in his fingertips and feet. (R707)

Scott takes Celebrex and aspirin for his arthritis, as well as insulin and Actos for his diabetes. (R705-06) He has also been prescribed Xanax and Vicodin, which make him sleepy. (R711) At the most, he can sit for an hour to an hour and a half before needing to change positions, and he is unable to stand for more than 15-20 minutes before needing to sit down. (R708) Scott further testified that he cannot walk more than 100-150 feet at a time. Id. He estimates that he could lift 20lbs. routinely and up to 40 lbs. occasionally. (R709) He is able to bend over to pick something up off the floor with difficulty and is exhausted after climbing or coming down a set of stairs. Id. Scott stated that he needs to lay down for a period of time to relieve cramping and pain virtually every day. (R716-17)

The ALJ presented the VE with the following hypothetical:

Q: I'm going to ask you if you were to assume a person 46 years old with a high school education with past relevant work same as the claimant's. I ask you to assume that this person would be able to do, let's start with light and sedentary. I think I know where we're going with this but I'll still see what we've got at light and sedentary in case there's transfers. With the following limitations . . . They've got occasional and I think that's probably correct on all of the postural limitations and of course, never ladders, ropes, and scaffolding. Only occasional reaching overhead, jobs that would cause reaching over the head with the left arm which is the non-dominant arm. Because of the diabetes, I'm going to put no concentrated exposure to cold, no hazards, machinery or anything because of the diabetes, probably the numbness would be dangerous to that. With those restrictions, could he return to any of his prior work?

A: Your Honor, based upon those restrictions, the disc jockey position would still be a qualified position and the, as listed and usually performed in the national economy, the auto parts manager position would still be a qualified position.

Q: The parts manager?

A: Yes..

Q: That wouldn't require any lifting or anything that would be over the limit?

A: That's classified at light duty as it's normally performed in the national economy and I would be hard pressed personally, Your Honor, to find a manager in an auto parts store with the exception of a very, very, very, very largest store that does not do some sort of loading or unloading or stocking of the shelves. I do think that there's a possibility that the position that the person could do, or the hypothetical could perform regional management positions as far as auto parts stores are concerned. But I really don't think they can, my personal opinion is he can't do the manager, the store manager.

Q: Okay.

A: The hypothetical can't. Disc jockey position, I think still would be a qualified position.

Q: Are there transferable skills?

A: Yes, Your Honor. There's a number of transferable skills. The, the retail management position is an SVP of seven. It would be a lot of management responsibilities. There would be a lot of clerical activities, paper work, supervision, scheduling. There would be a number of transferable skills both to the light and to the sedentary categories based upon that position alone. In conjunction, customer service position would dovetail then with the disc jockey, the ability to perform a variety of activities. The ability to do not just paper work but to maintain their own business records and to keep track of all those kinds of things for running your own business.

Q: And could you translate those into jobs that would transpose skills that it would apply to?

A: There's a general classification, Your Honor, for what's called general manager, 191.117-038. This is a regional manager for retail and other, combination of different types of employers such as parts, clothing, lumber, things like that for general manager position. It's an SVP of seven and it's classified as a light duty position. There are sales manager, Your Honor, district sales manager positions, 186.167-034. It's an SVP of seven. It's a sedentary position.

Q: That was sales manager?

A: Yes, general sales, general regional sales manager.

Q: You didn't give me numbers on either of those.

A: Oh, I apologize, Your Honor. General regional sales manager, Your Honor, the numbers are 11,900. The business manager which is a combination of positions, again regional management position, the numbers on that are 13,101. And when we move into the SVP level of three, Your Honor, there's also a number of clerical positions such as a general clerk at 209.462-010. It's an SVP of three. It's a light duty position, there are 20,000 of those. And last, but not least, I would classify again with a lower level SVP, electronics technician, 726.684-026. It's an SVP of three. It's a light duty position. There are 10,800 of those. Do you want me to move into sedentary at this point, Your Honor?

Q: Give me a sedentary job or two, an example of a sedentary job or two because I'm sure counsel is going to ask about a sit/stand option --

A: Okay.

Q: -- and it may be warranted.

A: Dispatcher, 249.167-014. It's an SVP of five. It's a sedentary position. There are 16,150 of those. Cashier I, 211.362-010. It's an SVP of five. It's a sedentary position. There are 11,000 of those. And again, there's a number in the lower SVP levels.

Q: Okay. All right. And those are jobs that you feel like have ...


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