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Bassett v. Astrue

July 12, 2010


The opinion of the court was delivered by: Jeanne E. Scott, U.S. District Judge


Plaintiff Rodger Dean Bassett appeals the Commissioner's partial denial of his application for disability insurance benefits under the Social Security Act. This Court has jurisdiction. 42 U.S.C. § 405(g). The parties have filed cross-motions for summary judgment. Motion for Summary Judgment (d/e 8); Defendant Commissioner's Motion for Summary Affirmance (d/e 12). For the reasons set forth below, Bassett's Motion for Summary Judgment is ALLOWED and the Commissioner's Motion for Summary Affirmance is DENIED. The unfavorable portion of the Decision of the Commissioner subject to the Plaintiff's appeal is REVERSED and REMANDED for further proceedings consistent with this Opinion.


Bassett was born on December 9, 1952. He completed high school and some subsequent welding training. He worked as a welder, material handler, and as an assistant manager at a fast food restaurant. He stopped working April 12, 2005. Answer to Complaint (d/e 5), attached Certified Record of Proceedings before the Social Security Administration (R.), at 140. He alleged in his application that he became disabled on that date.

R. 105. Both before and after that date, Bassett has continued assisting his wife in operating a campground located in Florida. He worked one day a week mowing grass on a riding mower. R. 35.

Bassett suffers from severe neck pain and associated headaches. Bassett saw Dr. Marlene Kremer, M.D., and a chiropractor, Dr. Mario Fucinari, D.C., for pain in 2005 and 2006. R. 232-35, 237-337, 353-56. Bassett reported to Dr. Kremer that Davocet was not helpful for his back pain. R. 233-35. On November 6, 2005, Basset went to the emergency room with back pain. He reported pain in his right arm and shoulder, but he had normal grip strength bilaterally. He was given pain medication. He reported improved pain level and was released. R. 212-17.

In February 2006, a state agency physician Dr. Vittal Chapa, M.D., examined Bassett. Bassett could ambulate without any ambulatory needs. Dr. Chapa found no evidence of joint redness, heat, swelling or thickening. There was no evidence of paravertebral muscle spasm. Dr. Chapa found normal strength, reflexes and ability to perform manual manipulations, but a slight decrease in range of motion of the right shoulder. Dr. Chapa diagnosed Bassett with chronic cervical pain. R. 340.

On March 20, 2006, a state agency physician Delano Zimmerman, M.D., opined that Bassett had the ability to lift 20 pounds occasionally and 10 pounds frequently; stand for six hours in an eight-hour workday; sit for six hours in an eight-hour workday; push or pull objects without limitation; occasionally climb ramps and stairs; never climb ladders, ropes, and scaffolds; and occasionally engage in balancing, stooping, kneeling, crouching, and crawling. R. 346-47.

In December 2006, Dr. James McKechnie, an orthopedist, examined Bassett. Dr. McKechnie found strength, reflexes, and sensation were within normal limits, but he also found weakness of grip strength, significant weakness of wrist extension, and mild diffuse weakness in all other areas. A straight leg raise test was negative. Heel and toe walking were normal.

X-rays of the cervical spine showed marked degenerative changes in the C5-6 area of the spine with prominent anterior and posterior spur formation, narrowing of the neural foramina, and spurring at C4-5 and C6-7. R. 359. Dr. McKechnie ordered an MRI. The MRI showed severe degenerative spondylosis throughout the cervical spine, mild spinal canal stenosis or narrowing, significant neural foraminal narrowing, and possible edema or myelomalacia. R. 362.

On August 22, 2007, Bassett saw Dr. Kremer for pain. Bassett reported that he could work for about 20 minutes and then needed to rest.

R. 369. On January 10, 2008, Bassett had a neurological consultation with Dr. Robert Kraus. Bassett had limited motion in his neck, but no pain and normal range of motion in his shoulders. Bassett reported gradual worsening of back pain since 2000. R. 378-81.

On February 25, 2008, Dr. Kremer completed a residual functional capacity report. Dr. Kremer found that Bassett had limited range of motion of the neck. She noted that Bassett was taking narcotic pain medication daily. She stated that Bassett had these limitations since at least November of 2005. Dr. Kremer opined that if Bassett engaged in sedentary work, his pain would cause him to take additional breaks from work (aside from normal breaks) that would total more than one hour in an eight-hour work day. R. 386-87. She also opined that Bassett would be absent from work more than three times a month. R. 387. She opined that Bassett's functional limitations commenced in November 2005. R. 388.

The Administrative Law Judge (ALJ) held an evidentiary hearing on December 9, 2008. Bassett and his attorney appeared, as well as vocational expert Bonnie Gladden. Bassett and Gladden testified at the hearing. Bassett testified that he lived with his wife and adult son. He and his wife owned a campground in Florida. They earned about $1,100 to $1,200 per month. His wife ran the campground. He ...

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