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Robert Catchings v. Michael J. Astrue

February 28, 2011


The opinion of the court was delivered by: Morton Denlow United States Magistrate Judge

Magistrate Judge Morton Denlow


Claimant Robert Catchings ("Claimant") brings this action under 42 U.S.C. § 405(g) seeking reversal or remand of the decision by Defendant Michael J. Astrue, Commissioner of Social Security ("Defendant" or "Commissioner"), denying Claimant's application for Disability Insurance Benefits ("DIB") or Supplemental Security Income ("SSI"). In response, Defendant filed a motion to affirm the Commissioner's decision. Claimant raises the following issues in support of his motion: (1) whether the ALJ properly found that Claimant did not meet or medically equal a listed impairment; (2) whether the ALJ properly determined that Claimant could perform sedentary work with a sit/stand option; and (3) whether the ALJ posed hypothetical questions to the vocational expert ("VE") supported by the medical evidence. For the following reasons, the Court grants Claimant's motion, denies the Commissioner's motion, and remands the case to the Commissioner for further proceedings consistent with this opinion.


A. Procedural History

Claimant initially filed for DIB and SSI on April 7, 2006, alleging a disability onset date of November 28, 2001. R. 39--40. The Social Security Administration ("SSA") denied his application on July 3, 2006. Id. Claimant then filed a request for reconsideration, which the SSA denied on September 20, 2006. R. 66--74. Shortly thereafter, Claimant requested a hearing before an ALJ. R. 76--77.

On February 7, 2008, Administrative Law Judge Joel G. Fina (the "ALJ") presided over a hearing at which Claimant appeared with his attorney, Frank Tuzzolino.

R. 8--38. Claimant and Glee Ann Kehr, a vocational expert, testified at the hearing. No medical expert testified. On March 26, 2008, the ALJ rendered a decision finding Claimant not disabled under the Social Security Act. R. 43--52. Specifically, the ALJ found Claimant does not have an impairment or combination of impairments that meets or medically equals a listed impairment; has the residual functional capacity ("RFC") to perform sedentary work; and can perform a significant number of jobs that exist in the national economy. R. 49--51.

Claimant then requested review of the ALJ's decision by the Appeals Council. R. 5--7. On December 1, 2009 the Appeals Council denied review, making the ALJ's decision the final decision of the Commissioner. R. 1--4. Claimant subsequently filed this action for review pursuant to 42 U.S.C. § 405(g).

B. Hearing Testimony-February 7, 2008

1. Robert Catchings-Claimant

At the time of the hearing, Claimant was forty-six years old, stood 6'2" tall, and weighed 350 pounds. R. 13. He attended school through the eleventh grade, but never graduated or received a GED. Id. Claimant found his last job through a temp service in 2003. R. 14. He worked at a factory for thirty-two to thirty-eight hours per week, lifting and stacking 50-100 pound boxes. Id. He left after three months because of back and ankle pain. Id. Claimant currently splits his time between living with his wife and his father. R. 17, 19. He has not worked since 2003 and receives public assistance through food stamps. R. 17.

Claimant testified that he could not work because of back and ankle pain. R. 15. Claimant has a history of back and ankle injuries. He was shot in the back, which was the initial source of his back pain. R. 16. More recently, Claimant fell in 2002 and injured his back. R. 15. Claimant also broke his right ankle in 2003. Id. The ankle injury required surgery and corrective hardware in his ankle, which was later removed. Id. Claimant also chipped a bone in his left ankle in 1986, had a hernia repair in 1995, and is currently awaiting a second hernia repair. R. 16. The last time Claimant saw a doctor was in December 2007 when Claimant went to the emergency room for back pain; the emergency room doctor told him to elevate his feet at waist height for the pain. R. 25--26. Claimant's only prescription medication is Vicodin, which he has taken since the 1990's. R. 24--25. He takes about five pills a day. R. 25.

Claimant testified to his physical limitations. He thought he could lift eight to ten pounds. R. 21. He can sit for only three minutes before he has to stand up due to pain, and his back pain increases the longer he sits. R. 21--23. He can stand for ten to fifteen minutes before he must sit down, and he can walk half a block at a time. R. 22. Sometimes he loses his balance while standing or walking because his left leg will give out. R. 23. Claimant experiences low back pain that shoots into his left leg. Id. At the hearing, Claimant described his pain as six on a scale of one to ten. Id. Claimant experiences pain and swelling in his ankles, which he testified was three or four on a scale of one to ten. Id.

Claimant also testified about the effects of his injuries on his daily activities. Claimant can tend to his personal needs, such as showering, shaving, and brushing his teeth. R. 17. Claimant cannot climb a ladder and has difficulty climbing stairs. R. 22. He also has trouble bending over, but he can put on socks and shoes. Id. He sleeps only five to six hours a night and wakes up from the pain. R. 27. He can cook some meals for himself and does occasionally shop for food, but he cannot cook any meals that require him to stand for a prolonged period of time. R. 18--19. Claimant's father generally goes to the grocery store, and if Claimant does accompany his father, he usually waits in the car. R. 19--20. When he goes to the mall or large stores like Wal-Mart, he rides in a motorized cart. R. 20. Claimant has a car, but his father drives him most places. R. 18--20. Claimant can ride long distances in the car. R. 20. He does not usually take public transportation. R. 19. Claimant testified he could not vacuum because the walking agitates his ankles, and his wife does his laundry. R. 18. He can load but not unload the dishwasher, because of back pain from bending over. Id. He does not perform any yard work or take out the trash. R. 19. Claimant used to fish, play football and basketball, and ride bikes with his children, but cannot do so anymore because of back and ankle pain. R. 28.

2. Glee Ann Kehr-Vocational Expert

The VE described Claimant's relevant work experience for the past fifteen years.

R. 30. Claimant has previously worked at machine assembly, as a material handler, in merchandise delivery, as a security guard, and as a forklift driver. Id. Claimant performed the material handler and merchandise delivery positions at the heavy work level. Id. He performed the machine assembly and forklift positions at the medium work level, and the security guard position at the light work level. Id. The machine assembly and merchandise delivery positions were unskilled jobs, while the material handler, security guard, and forklift driver positions were low-end semiskilled. Id.

The ALJ posed several hypothetical questions to the VE. First, he asked whether a person could perform Claimant's past work, if the person had Claimant's age, education, work experience, and skill level; could lift twenty pounds occasionally and lift or carry ten pounds frequently in light work; could frequently balance and occasionally stoop, crouch, or climb stairs or ramps; could not operate foot controls, kneel, crawl, or climb ladders, ropes, or scaffolds; and must avoid concentrated exposure to heights and moving machinery. R. 30--31. The VE answered that the hypothetical person could only perform the security guard position, but that other jobs existed in the region that the person could perform. R. 31--32. The ALJ then asked the VE to assume the same factors and limitations, but with the additional restriction that the person would have the option to sit or stand. R. 32. The VE replied that the person could possibly perform some security guard positions in which the employer allowed the officer to sit. Id. The VE also listed several other jobs that the person could perform. R. 33.

The ALJ then asked the VE to assume the same factors and limitations, but with a sedentary work restriction with a sit or stand option, and asked whether that person could perform Claimant's past relevant work. R. 34. The VE answered that the person could not, but that the person could perform other jobs available in the regional economy, including account clerk, telephone clerk, or order clerk. Id. In response to questioning by Claimant's counsel, the VE stated that a person could not work if he had to elevate his feet at waist height while ...

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