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Paul Bellinghiere v. Michael J. Astrue

September 22, 2011


The opinion of the court was delivered by: Jeffrey T. Gilbert Magistrate Judge


Claimant Paul Bellinghiere ("Claimant") brings this action under 42 U.S.C. § 405(g), seeking reversal or remand of the decision by Respondent Michael J. Astrue, Commissioner of Social Security ("Commissioner"), in which the Commissioner denied Claimant's application for disability insurance benefits. This matter is before the Court on the parties' cross-motions for summary judgment [Dkt.##12, 19]. Claimant argues that the Commissioner's decision denying his application for disability insurance benefits should be reversed and/or that the case should be remanded for further proceedings. Claimant raises the following issues in support of his motion:

(1) whether the ALJ properly considered evidence of Claimant's treating physicians' opinions;

(2) whether the ALJ's credibility finding regarding Claimant's testimony was improper; and (3) whether the ALJ properly posed a complete hypothetical to the vocational expert. For the reasons set forth below, Claimant's motion for summary judgment [Dkt.#12] is granted, and the Commissioner's motion [Dkt.#19] is denied. The decision of the Commissioner of Social Security is reversed, and this matter is remanded to the Social Security Administration for further proceedings consistent with the Court's Memorandum Opinion and Order.


A. Procedural History

Claimant filed an application for disability benefits on March 22, 2007, alleging a disability onset date of November 21, 2005. R.38. Claimant's date last insured was December 31, 2010.*fn1 R.38. The Social Security Administration ("SSA") initially denied his application on May 11, 2007 and again denied the claim upon reconsideration on August 2, 2007. R.38, 55, 56. Claimant then filed a written request on September 20, 2007 for a hearing before an Administrative Law Judge ("ALJ"). R.38, 69-74. Claimant appeared with counsel and testified at a hearing held on October 6, 2009. R.1-19, 38. Vocational expert Lee Knutson also appeared and testified at the hearing. R.19-23, 38. No medical expert testified at the hearing.

On October 26, 2009, the ALJ rendered a decision finding that Claimant was not disabled under the Social Security Act. R.35-54. Specifically, the ALJ determined that Claimant "had the residual capacity to perform light work defined in 20 C.F.R. § 404.1567(b) except: Claimant can occasionally climb ramps, stairs, ladders, ropes, and scaffolds; claimant can frequently balance; claimant can occasionally stoop, kneel, crouch, and crawl; claimant cannot reach overhead; claimant can occasionally reach in all other directions." R.42.

On November 2, 2009, Claimant filed a request for review of the ALJ's decision with the Appeals Council. R.33-34. On July 28, 2020, the Appeals Council denied review, making the ALJ's decision the final decision of the Commissioner. R.24-28. Claimant subsequently filed this action for review pursuant to 42 U.S.C. § 405(g).

B. Hearing Testimony -- October 6, 2009

1. Paul Bellinghiere -- Claimant

At the time of the hearing, Claimant was 44 years old, married, and living with his wife. R.8. Claimant completed education through the 12th grade and has past relevant work experience as an insulator. R.8. Claimant was injured on the job on November 21, 2005 and has not worked since the injury. R.6. Claimant had emergency back surgery in November 2005 but still reports experiencing pain and that his condition did not improve after surgery. R.6, 9.

During the hearing, Claimant explained that he suffers from constant back and leg pain and is unable to work. R.9-12. Claimant testified that it is difficult for him to stand or sit for long periods of time. R.10. He stated that he can walk for 20 minutes before he has to sit down

(R.11), and he has difficulty bending, stopping and squatting. R.13. Claimant also testified that he has pain in his shoulder, and he has trouble reaching over his head. R.13. Claimant stated that the pain becomes progressively worse throughout the day, and ultimately, he has to lay down to relive the pain. R.12. Claimant stated he takes Percocet and Lyrica to alleviate the pain. R.10. Claimant testified that the medication takes the "edge off," but the pain is not completely alleviated. R.10. He testified that his sleep is disrupted because of the pain, and he has not been able to sleep through the night since his injury. R.11.

Claimant testified he is able to care for his personal hygiene so long as he doesn't have to stand for a long period of time. R.15. Claimant reported that he does not perform any household chores such as cleaning, cooking and laundry. R.15-17. Claimant testified that he has spent "95 percent of [his] days in the last four years in bed." R.12. Claimant testified that other than visiting his mother sometimes and going fishing with his brothers a couple of time a month, he doesn't doing anything during the day except for lay in bed and watch television. R.15-16. While fishing, Claimant stated that cannot cast a fishing pole and that he only can last a couple hours before he has to stop. R.16-17. He testified that he can lift a bag of groceries, maybe 10 pounds, but nothing heavier. R.14.

Claimant testified that he participated in physical therapy for his back. R.17. He also testified that the next step would be a fusion procedure but that the doctors disagree about how many disks should be fused. R.17. Claimant testified that one of his doctors stated that "there's not even a 50 percent chance that [he'll] ever get better." R.17. As a result, Claimant testified that he does not want to have the surgery because he is unsure about the results. R.17-18.

2. Lee Knutson -- Vocational Expert ("VE")

The VE described Claimant's past relevant work as an insulation worker, construction, which he categorized as heavy work and skilled. R.21. While questioning the VE, the ALJ asked whether a 44-year old individual with the same education and past work experience as Claimant could perform his past relevant work if he had the residual functional capacity to perform light work, except that: he can occasionally climb ramps, stairs and should never climb ladders, ropes, and scaffolds; he can occasionally balance, stoop, kneel, crouch, and crawl; and he can occasionally perform activities, reaching activities forward and below shoulder level, but he cannot perform any work activity requiring overhead reaching. R.21. The VE testified that, based on the hypothetical given by the ALJ, an individual with the limitations described could not perform his past work. R.21.

The ALJ then changed the hypothetical to assume an individual capable of performing sedentary work with the ability to alternate sitting and standing every two hours for about five to ten minutes. R.21-22. The VE testified that there would be jobs that Claimant could perform.

R.22. The ALJ again changed the hypothetical to assume that an individual would need to alternate sitting and standing every 20 minutes, and the VE responded that there would not be any jobs because the individual would ...

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