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Gene J. Walker v. Michael J. Astrue

May 12, 2011


The opinion of the court was delivered by: Magistrate Judge P. Michael Mahoney


I. Introduction

Gene Walker seeks judicial review of the Social Security Administration Commissioner's decision to deny his application for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act. See 42 U.S.C. § 405(g). This matter is before the magistrate judge pursuant to the consent of both parties, filed on March 23, 2010. See 28 U.S.C. § 636(c); Fed. R. Civ. P. 73.

II. Administrative Proceedings

Claimant filed for DIB and SSI on or about February 22, 2006. (Tr. 130.) He alleged a disability onset date of January 27, 2006. (Tr. 130.) His claim was denied initially and on reconsideration. (Tr. 36, 37--34.) The Administrative Law Judge ("ALJ") convened a hearing on August 10, 2007, but the hearing was continued because of a significant discrepancy between two repeat forms from the same treating physician. (Tr. 10.) Claimant's counsel, James Black, was unable to reconcile the discrepancy and the ALJ found it imprudent to proceed without further explanation. (Tr. 10.) The ALJ conducted a full hearing into Claimant's application for benefits on November 24, 2008. (Tr. 14.) At the hearing, Claimant was represented by counsel, James Black, and testified. (Tr. 14--45.) William Schweihs, a Vocational Expert (hereinafter referred to as "VE"), and Dr. James McKenna, a Medical Expert (hereinafter referred to as "ME") were also present and testified. (Tr. 14.) The ALJ issued a written decision denying Claimant's application on February 3, 2009, finding that Claimant was not disabled because there were jobs that exist in significant numbers in the national economy that the claimant can perform. (Tr. 44.) Because the Appeals Council denied Claimant's Request for Review regarding the ALJ's decision, that decision constitutes the final decision of the Commissioner. (Tr. 1--5.)

III. Background

Claimant was 41 years of age at the time of his hearing. (Tr. 31.) According to his testimony, Claimant lived with his parents, who were in their late sixties or early seventies and retired. (Tr. 17, 19.) Claimant also lived with his brother, who receives disability benefits. (Tr. 17.)

Claimant had not visited a doctor since 2007. (Tr. 17.) He had been taking Vicodin and Naproxen. (Tr. 17.) Claimant stopped taking these medications after 2007 because he could not afford them, and stated that he was taking ibuprofin at the time of his hearing. (Tr. 16--17.)

Claimant's family owned an automobile, but Claimant did not drive it due to the loss of his license. (Tr. 18.) He lost his license as a result of too many tickets, drag racing, and having an uninsured motor vehicle. (Tr. 18.) Claimant testified that he would do all of the work on his own car, but later explained that he had not done work on his car in the past few years. (Tr. 18--21.) Claimant estimated that he lived approximately one-half mile from public transportation, but could not walk to the stops. (Tr. 18.)

Claimant described pain that was isolated in his neck, but also stated that it was "all up and down." (Tr. 21.) He could lift approximately five to ten pounds, and could sit for five to ten minutes before he had to move around because of pain. (Tr. 21.) Claimant wore a neck brace while laying down for four to six hours per day. (Tr. 22.) He would only leave his house once a week, and described a typical day as sitting or laying around the house. (Tr. 22.)

The ME was questioned by the ALJ and Claimant's attorney, and testified to the following: He reviewed Claimant's electronic file and was present throughout the hearing to hear the testimony of Claimant. (Tr. 23.) He found the only objective medical evidence in the record to be cervical spine X-rays. (Tr. 24.) The X-rays showed mild degenerative changes predominantly in the C5-C6 area with some spurring, which the ME describe as "basically a kind of age-related change" for someone around Claimant's age. (Tr. 24.) There was also mention of mild narrowing of the lower cervical neuroforamen, though the ME noted that it usually takes a moderate degree of narrowing to raise a concern. (Tr. 24--25.) Mild narrowing was "really very, very borderline in terms of significance." (Tr. 25.) Claimant's file contained no other corroborative or other kinds of studies, other than Claimant's reports of pain. (Tr. 25.) Referring to a Spinal Disorders form filled out by the treating physician, the ME noted that there was nothing about reflex loss, atrophy, or range of motion. (Tr. 26.) The ME described as "striking" the treating physician's finding of restriction of function in relation to the evidence that the treating physician attested to. (Tr. 26.) The ME found that there was no objective finding on which to based the significant restriction of function. (Tr. 28.) Claimant had no other impairments and did not meet or equal a listing. (Tr. 28.)

The ME reviewed the State Agency physician's opinion that Claimant was limited to lifting no more than 50 pounds occasionally and standing and walking up to six hours in an eight-hour day. (Tr. 29.) He opined that there was a lack of an objective basis, but that the State Agency was likely giving Claimant credit for being a chronic pain claim, and therefore reduced his functional capacity from a heavy to a medium level. (Tr. 29.) The ME was hesitant to consider Claimant's case to be a "fully-fledged chronic pain claim," but thought that the medium residual functional capacity ("RFC") was a reasonable choice. (Tr. 29.)

The VE then testified as to Claimant's ability to work. (Tr. 31.) The ALJ did not ask the VE about Claimant's past work because the ALJ did not find that any of Claimant's past work rose to the level of substantial gainful activity. (Tr. 31.) The ALJ presented the VE with the following hypothetical:

I want you to assume that we have an individual who's presently 41 years of age, 11 years of formal education, some SGA work on and off over the last 15 years, no past relevant work, with a history of neck problems with evidence of mild degenerative changes at C5-C6 of the cervical spine, and mild narrowing of C5 and C6. ... Who does not have any herniated cervical spine disc; who does not have compression of the central cord; who does not have any discreet nerve root lesions; who has no apathy (sic) or sensory loss or reflex loss, and no range of motion loss, but does have complaints of chronic pain for which he has taken prescription medications in the past; who is presently taking ibuprofin; who has not seen a treating source for a substantial period of time due to loss of income and insurance. I want you to further assume that this individual does not have an impairment that meets or equals a listing, and he retains the ability to lift the maximum of 50 pounds occasionally and 25 pounds frequently; can stand and walk up to six hours out of an eight-hour day, and sit for six hours out of an eight-hour day, and has no other exertional an [sic] non-exertional limitations. Please classify the range of work that is available for such an individual.

(Tr. 32.) The VE stated that a full range of unskilled medium level work would be available for such an individual. (Tr. 32.) The ALJ then presented a second set of hypothetical facts to the VE:

Assume an individual who can lift and carry 20 pounds maximum occasionally and 10 pounds frequently, and stand and walk about six hours out of an eight-hour day, and sit for about six hours out of an eight-hour day; who from time-to-time during an eight-hour workday would need to lie down at will. (Tr. 32.) The VE opined that such a person would not be capable of performing regular competitive work in the national economy. (Tr. 32--33.)

Claimant's counsel presented a third hypothetical to the VE, by asking the VE to change the above hypothetical to assume an individual with capacity to: lift less than ten pounds maximum, to stand and walk a minimum of five to ten minutes, to sit or stand a maximum of five to eight minutes ... and must lie down to relieve pain at times. (Tr. 33.) The VE testified that such a person would not be capable of full-time work in the national economy.

IV. Medical Evidence

The evidence in Claimant's medical record dates back to a March 3, 2004 visit with Dr. Theodore Ford, M.D., where Claimant presented with pain at the base of his neck and upper back. (Tr. 248.) Claimant reported that he may have slept wrong, and that the pain had been occurring for about a week. (Tr. 248.) Dr. Ford assessed Claimant as having degenerative disc disease, spondylosis, and discogenic disease. (Tr. 248.)

On March 4, 2004 Claimant had an X-ray taken on his cervical spine. (Tr. 233.) Dr. Alan S. Wagner, M.D., evaluated the X-ray as indicating mild degenerative changes predominantly at C5-C6 with spurring and mild narrowing of the lower cervical neuroforamen. (Tr. 233.) No evidence of fracture or subluxation was reported. (Tr. 233.) Claimant followed up with Dr. Ford on March 10, 2004 and reported that his neck was 60 to 70 percent improved. (Tr. 246.) Dr. Ford prescribed Vioxx and Vicodin. (Tr. 246.)

The records indicate that Claimant next saw Dr. Ford on January 30, 2006. (Tr. 245.) Claimant again presented with neck pain which he described as being between a three and an eight on a scale of one-to-ten. (Tr. 245.) Claimant reported that his condition was no better than it was at his last appointment, but Dr. Ford's notes indicate that there was no radiating pain. (Tr. 245.) The notes from the visit also indicate that Claimant was given or was taking ibuprofin, and that he was working part-time making pizzas and for a moving company. (Tr. 245.) Claimant saw Dr. Ford again on March 28, ...

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