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Johnnie L. Pettaway v. Michael J. Astrue

July 21, 2011


The opinion of the court was delivered by: Judge George W. Lindberg


Plaintiff Johnnie L. Pettaway seeks judicial review of the decision by defendant Commissioner of the Social Security Administration ("SSA"), denying plaintiff's application for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). Plaintiff and defendant have filed cross-motions for summary judgment. For the reasons stated below, plaintiff's motion is granted, and defendant's motion is denied.

I. Procedural History

Plaintiff applied for DIB and SSI in 2004, claiming that he had been disabled since July 21, 2003. Following a hearing, the ALJ found that plaintiff suffers from multiple severe impairments: an injured right shoulder rotator cuff, affective disorder, and substance abuse. However, the ALJ found that plaintiff had the residual functional capacity to do unskilled medium exertion work despite his impairments, and that he was able to perform past relevant unskilled work in shipping. The ALJ concluded that plaintiff was not disabled, and denied plaintiff's application for benefits on April 25, 2007.

The Appeals Council granted plaintiff's request for review, and on December 11, 2008 vacated the hearing decision and remanded the case for further proceedings. The Appeals Council found that the hearing decision did not contain an adequate evaluation of the opinion of plaintiff's treating psychologist, Dr. Jean Roe, or its impact on plaintiff's maximum residual functional capacity. The Appeals Council directed the ALJ to take the following actions on remand:

* Give further consideration to plaintiff's maximum residual functional capacity during the entire period at issue and provide a rationale, with specific references to evidence in the record, in support of any assessed limitations.

* Evaluate the treating source's opinion pursuant to the provisions of 20 CFR 404.1527 and 416.927 and Social Security Rulings 96-2p and 96-5p, and explain the weight given to such evidence.

* Obtain evidence from a vocational expert to clarify the effect of the assessed limitations on plaintiff's occupational base.

* Apply the steps of the sequential evaluation process in 20 CFR 404.1520 and 416.920 to a consideration of all of plaintiff's combined impairments, including his drug and alcohol use.

* If the ALJ found plaintiff to be disabled, he should conduct further proceedings to determine whether drug addiction was a contributing factor that is material to a disability determination.

On remand, the same ALJ held a hearing on May 19, 2009, at which he heard testimony

from plaintiff, medical expert Larry Kravitz, and vocational expert William Sweis.*fn1 On June 15, 2009, the ALJ again denied plaintiff's application for benefits. The Appeals Council denied plaintiff's request for review. Plaintiff filed this appeal on November 7, 2010.

II. Factual Background

Plaintiff was born in 1960. Before July 2003, plaintiff did shipping and receiving work, and worked as a sander.

Plaintiff started receiving treatment for a shoulder injury in 2003. A December 6, 2004 evaluation report by Dr. William McKenna indicated that plaintiff lacked full range of motion in his right shoulder. That report also described plaintiff as a "[p]atient with intermittent weakness and intermittent loss of use in right hand." Plaintiff continued to seek treatment for shoulder pain in 2008, although his range of motion in the shoulder had improved. Plaintiff was scheduled to have shoulder surgery on October 30, 2008.

Plaintiff's shoulder surgery was cancelled, however, after plaintiff had an abnormal electrocardiogram during a preoperative heart stress test. The stress test revealed that plaintiff's heart was mildly enlarged, there was generalized hypokinesis,*fn2 and the ejection fraction*fn3 was calculated at 34%. Plaintiff had a cardiac catheterization on December 1, 2008, after complaining of intermittent chest pain and increased shortness of breath on exertion. This procedure revealed moderate, diffuse, left ventricular hypokinesia; an estimated ejection fraction of 30%; and mild nonobstructive coronary ...

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