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Anthony Reed v. Michael J. Astrue

December 13, 2010

ANTHONY REED, PLAINTIFF,
v.
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Magistrate Judge Jeffrey Cole

MEMORANDUM OPINION AND ORDER The plaintiff, Anthony Reed, seeks review of the final decision of the Commissioner ("Commissioner") of the Social Security Administration ("Agency") denying his application for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act ("Act"), 42 U.S.C. §§ 423(d)(2), and Supplemental Security Income ("SSI") under Title XVI of the Act, 42 U.S.C. § 1382c(a)(3)(A). Mr. Reed asks the court to reverse and remand the Commissioner's decision, while the Commissioner seeks an order affirming the decision.

I.

PROCEDURAL HISTORY Mr. Reed applied for DIB and SSI on January 16, 2004, alleging that he had been disabled since February 1, 1993, due to lower back problems, hypertension, diabetes, arthritis, and some heart problems. (Administrative Record ("R.") 134-136). His application was denied initially and upon reconsideration. (R. 66-68). Mr. Reed continued pursuit of her claim by filing a timely request for hearing.

An administrative law judge ("ALJ") convened a hearing on August 9, 2006, (R. 969), which was continued twice in order to supplement the medical record. (R. 999, 1023). Mr. Allen, represented by counsel, appeared and testified at the hearings. (R. 969, 999, 1023). In addition, Frank Mendrick testified as a vocational expert, and Dr. Bernard Stevens testified as a medical expert. (R. 1023,). On April 26, 2007, the ALJ issued a decision finding that Mr. Reed was not disabled because he retained the capacity to perform jobs that exist in significant numbers in the national economy. (R. 28-41). The Appeals Council initially denied Mr. Reed's request for review, but agreed to a remand under sentence six of §405(g) once Mr. Reed challenged the decision in federal court. (Dkt. #8, 10).*fn1 After considering some additional evidence and arguments, the Appeals Council again denied Mr. Reed's request for review on May 8, 2009 (R. 7), and that became the final decision of the Commissioner. See 20 C.F.R. §§ 404.955; 404.981. Mr. Reed has filed an amended complaint appealing that decision under 42 U.S.C. § 405(g), and the parties have consented to the jurisdiction of a Magistrate Judge pursuant to 28 U.S.C. § 636(c).

II.

EVIDENCE OF RECORD

A.

Vocational Evidence Mr. Reed was born on October 9, 1956, making him fifty years old at the time of the ALJ's decision. (R. 134). He dropped out of school after 11th grade, but later got his GED. (R. 1034). His work history consists of varied jobs for a labor service: machine operator, forklift operator, general laborer, and janitor. (R. 167). These jobs ranged from light to heavy, and was unskilled aside from the forklift operator position, which was semi-skilled. (R. 1078-79). He hasn't worked since 1997. (R. 167).

B.

The Medical Evidence The medical record in this case is close to 800 pages and, as is usually the case in disability appeals, it is compiled in no discernible order, a fair portion of it is illegible, and much of it is irrelevant.*fn2 Although Mr. Reed has hypertension and pancreatitis, he concedes that he suffers no limitations from these impairments. He focuses instead on those limited portions of the record concerning his back problems, diabetes, and depression. (Memorandum in Support of Plaintiff's Motion, at 3).

On March 3, 2002, Mr. Reed sought treatment for back pain that he said made him unable to walk. (R. 751). Although he had been injured nine years earlier, the increase in pain occurred the previous day while he was shoveling snow. (R. 751). Upon examination, straight leg raising was negative, there was no muscle weakness in the lower extremities, and sensation and reflexes were normal. (R. 179). Mr. Reed had an xray and MRI of his lumbar spine. The x-ray revealed minimal osteophytes -- bone spurring -- at the margin of the lower lumbar spine. Disc spaces were well-preserved, and there was no evidence of spondylolisthesis -- vertebral displacement. (R. 779). The MRI yielded similar results, with the major exception of what "appear[ed] to be a significant 3 mm central disc herniation at L4-L5 with displacement of the adjacent thecal sac and probable compression of the traversing neural elements." (R. 780-81). In April 2002, one of the physicians following Mr. Reed at his local clinic noted that his range of motion was normal, as was his motor strength in all limbs. (R. 205). The examination was similarly normal on April 15th and April 18th. (R. 244-45, 256). There was no tenderness noted along Mr. Reed's spine on the 18th. (R. 244). On March 19, 2003, the nurse practitioner treating Mr. Reed said he was "unable to perform any heavy lifting, especially involving bending and turning." (R. 180).

In January 2006, Mr. Reed's treating physician, Dr. Nizam, completed a "Physical Capacities Evaluation" form. (R. 417-19). He reported that only Mr. Reed's back pain resulted in any physical or functional limitation on Mr. Reed's ability to work.

(R. 419). He opined that he could perform light exertional work, with a limitation to occasional climbing, stooping, and operating foot controls. (R. 417, 419). There was no limitation on Mr. Reed's ability to reach or use his hands for fine or gross manipulation. (R. 419).

Mr. Reed also has a history of treatment for diabetes, beginning about 2002. He has been hospitalized or treated in the emergency room on four occasions for elevated glucose levels -- in January 2004 (R. 385), in July 2004 (R.294-98, 336-37), in February 2006 (R. 433, 608-11), and in September 2006 (876-83). In the July 2004 incident, it was reported that Mr. Reed was experiencing syncope, and toxicology screening was positive for marijuana, cocaine, and opiates. (R. 296). On other occasions when Mr. Reed sought medical care, his glucose levels were elevated to a lesser degree -- November 2005 (R. 410), January 2007 (R. 921, 957) -- or more often, within normal limits -- April 2002 (R. 198), July 2003 (R. 428), November 2003 (R. 396), April 2004 (R. 394), February 2006 (following treatment earlier in February)(R. 460), and April 2006 (R. 464).

Dr. Nizam also filled out a diabetes questionnaire in January 2006. (R. 402-06). He reported that Mr. Reed had been diagnosed with Type II diabetes in 2002, and that he had treated him for the condition since November 2003. (R. 402). Tests indicated hyperglycemia, but no ketosis, acidosis, or hypoglycemia. (R. 403). He called Mr. Reed's response to treatment "fair" and characterized his diabetes as "somewhat controlled," as opposed to "well-controlled" or "poorly controlled." (R. 405). Mr. Reed's condition was asymptomatic, however, and there had been no evidence of vascular complications, neuropathy, paresthesia, or slow healing. (R. 403-04). There was no effect on gait or motor function. (R. 404-05).

On January 30, 2007, Dr. Ana Gil performed a consultative psychiatric examination. (R. 945-51). After interview and examination, she diagnosed dysthymic disorder (secondary type), history of chronic alcohol dependence and abuse for thirty years -- Mr. Reed said he had not drank for four years -- and history of chronic cannabis dependence and abuse for twenty years -- he said he had not used marijuana for ten years. (Tr. 948). She noted that Mr. Reed said his treating physician, Dr. Nizam, had given him Zyprexa for depression. (R. 945). She also completed a "Mental Residual Functional Capacity Assessment" form and indicated that Mr. Reed had a moderate limitation in his ability to perform four of the mental work-related activities listed on the form: ability to maintain a schedule, ability to maintain a normal work week without interruption due to psychological symptoms, ability to travel in unfamiliar places or use public transportation, ability to set realistic goals or make plans independently of others. (R. 949-50). Mr. Reed was not significantly limited in his ability to perform in the sixteen remaining areas, such as remembering and carrying out both simple and detailed instructions, maintaining concentration for extended periods, sustaining an ordinary routine without supervision, working in coordination with others, getting along with co-workers and the general public, and responding appropriately to changes in a work setting, activities (Tr. 949-50).

Dr. Hilton Gordon performed a consultative internal medicine examination on January 30, 2007. (R. 891-95, 952-59). When he interviewed Mr. Reed regarding his diabetes, Mr. Reed denied neuropathy, polyuria, or polydipsia. (R. 952). Also, contrary to what he had told or would tell Dr. Gil that same day, Mr. Reed conceded that he drinks a little each week. (R. 952). He found that Mr. Reed had a full range of motion in all extremity joints. (R. 953). Gait was normal, as were motor strength, reflexes and sensation. (R. 954). His grip strength and dexterity were normal, as were his gross and fine manipulation. (R. 953). Range of motion in Mr. Reed's lumbar spine was 70/90 flexion and 20/30 extension associated with pin. (R. 954). There was slight tenderness in the lumbar spine upon palpation. (R. 954).

Mr. Reed takes several medications: Insulin and Metformin for diabetes; Coreg and Lisinopril for hypertension; Furosemide, which is a diuretic; Acetamenophin with Codeine for pain; and Ibuprofen, an anti-inflammatory. (R. 1073).

C.

The Administrative Hearing ...


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