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Matthew Bias v. Michael J. Astrue

April 30, 2012

MATTHEW BIAS , PLAINTIFF ,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT .



The opinion of the court was delivered by: Magistrate Judge Cox

MEMORANDUM OPINION AND ORDER*fn1

Plaintiff, Matthew Bias, seeks judicial review of a final decision of the Commissioner of the Social Security Administration ("SSA") denying his application for Social Security Insurance disability benefits under the Social Security Act ("Act"). Mr. Bias has filed a motion for summary judgment [dkt. 20], seeking a judgment reversing the Commissioner's final decision or remanding the matter for additional proceedings. For the reasons set forth below, Mr. Bias's motion is granted in that the matter is remanded to the SSA for further proceedings consistent with this opinion.

I. PROCEDURAL HISTORY

Matthew Bias applied for Social Security Insurance disability benefits on February 28, 2007.*fn2

Mr. Bias initially alleged that he had been unable to work since January 1, 2000,*fn3 because of the disabling conditions of arthritis in his right hip, high blood pressure, Crohn's disease, back problems, and gastroesophageal reflux disease ("GERD").*fn4 Mr. Bias subsequently amended his disability onset date to December 30, 2005,*fn5 the day before his insured status expired on December 31, 2005.*fn6

The SSA denied benefits to Mr. Bias on May 16, 2007*fn7 and upheld that denial upon reconsideration on August 23, 2007.*fn8 Mr. Bias requested a hearing before an Administrative Law Judge ("ALJ"), and ALJ Helen Cropper scheduled a hearing for July 2, 2009.*fn9 That hearing was postponed, however, until October 1, 2009, in order to receive additional medical records.*fn10 On

November 3, 2009, the ALJ concluded that Mr. Bias was not disabled within the meaning of the Social Security Act.*fn11 The Appeals Council denied Mr. Bias's request to review the ALJ decision on February 25, 2011.*fn12 Accordingly, the ALJ's decision is the final decision of the Commissioner of Social Security. Matthew Bias filed this action on April 4, 2011.

II. FACTUAL BACKGROUND

We now summarize the evidence from the administrative record. After setting forth Mr. Bias's medical history, including his medical treatment and social security records considered by the ALJ, we discuss the administrative hearing testimony. Lastly, we address the ALJ's decision in the case.

A. Introduction and Treating Physician Medical History Matthew Bias was born on July 4, 1951, making him fifty-four years old on his last-insured date, December 31, 2005.*fn13 Mr. Bias did not receive any education beyond a high school sophomore level, though he received some vocational training in electronics in 1970.*fn14 Mr. Bias worked for U.S. Steel in Gary, Indiana for thirty years, from October 8, 1969 until he took an early retirement on April 7, 2000.*fn15 At U.S. Steel, Mr. Bias worked in various positions, including utility man, crane operator, hooker, and burner.*fn16 As a burner, Mr. Bias used a 50 or 60-pound torch throughout his entire shift to smooth the ends of structural beams for bridges.*fn17 Later, before his retirement, Mr. Bias operated machines that burned through steel slabs.*fn18 This work was more difficult than his previous assignment because it required operating four machines running at once.*fn19

In 2001, after his retirement, Mr. Bias briefly worked as a laborer for a construction contractor to supplement his pension income.*fn20 Mr. Bias performed tasks like carrying lumber, drywall, and boxes of tile, but had to quit after a few months because he could not perform the necessary lifting or stair climbing.*fn21 Mr. Bias performed no other work after that.*fn22

Mr. Bias's medical history falls into three discernable periods. The first period spans from 2001, shortly after Mr. Bias's retirement, until March 2005. The second occurs after Mr. Bias's last-insured date of December 31, 2005, and lasts until he applied for disability benefits in February 2007. The final period coincides with Mr. Bias's 2009 appeal of his denial of benefits.

1. Pre-disability Period (2001 to March 2005)

During the first period, Mr. Bias was treated by hospitals and family physicians for several

medical conditions, including ongoing treatment for hypertension and GERD.*fn23 In March 2001, Mr. Bias was admitted to St. Francis hospital for six days, where he was diagnosed with gastrointestinal bleeding and ulcers in his small bowel suggestive of Crohn's disease.*fn24 In August 2001, Mr. Bias sought treatment at St. Francis hospital for lower back pain and stiffness after he was involved in a car accident where another vehicle rear-ended his car.*fn25 In December 2001, an x-ray identified mild osteoarthritic changes in Mr. Bias's right hip*fn26 after he complained of right hip pain and mild lower back pain.*fn27
Mr. Bias complained of back pain two other times during this period. In June 2002, Mr. Bias saw his family practitioner because he had been experiencing back spasms and severe back pain that interfered with his sleep.*fn28 Mr. Bias reported that he was doing a lot of moving and lifting around his house for spring cleaning, and also working in his yard.*fn29 His physician treated Mr. Bias with a painkiller injection and prescribed an anti-inflammatory drug and a muscle relaxant.*fn30 Although Mr. Bias visited his physician numerous times during the intervening years, he did not complain of back pain again until March 2005.*fn31 During this visit, Mr. Bias reported severe low back pain after experiencing a "snap" sensation while getting out of his car.*fn32 He could walk with difficulty, but was unable to get up onto the exam table because of the pain.*fn33
Mr. Bias also sought treatment numerous times during this period for respiratory congestion, bronchitis, and fatigue. In February 2002, Mr. Bias was diagnosed with an upper respiratory infection after complaining of chest congestion and cough for over a month.*fn34 A year later in 2003, he experienced similar symptoms on January 15, February 28, March 8, and March 17.*fn35 A series of chest x-rays and a CT scan revealed no acute cardiopulmonary findings.*fn36 In May 2003, Mr. Bias was diagnosed with fatigue after he reported feeling very tired and not wanting to get out of bed in the morning.*fn37 He stated that he had difficulty sleeping at night for years, but it had gotten worse in the last week.*fn38 Mr. Bias was again diagnosed with an upper respiratory infection on December 2, 2003;*fn39 a bloody cough on December 30, 2003;*fn40 acute pharyngitis, bronchitis, and fatigue on August 17, 2004;*fn41 and acute sinusitis and bronchitis on December 6, 2004.*fn42

2. Post-Disability Period (January 2006 to present)

After March 2005, there is a gap in Mr. Bias's medical history, where Mr. Bias maintains he did not seek treatment because he did not have a car to make the forty-five minute trip to his physician's office.*fn43 Mr. Bias's medical records do not resume until January 30, 2006, a month after his December 31, 2005, last-insured date.

In January 2006, Mr. Bias was again diagnosed with acute bronchitis and prescribed an albuterol inhaler.*fn44 During a follow-up visit a week later, his physician referred Mr. Bias to a sleep clinic for a sleep apnea study after Mr. Bias reported that he snores, wakes up hyperalert, and feels tired during the day.*fn45 Mr. Bias's congestion and cold symptoms persisted a month later.*fn46

Mr. Bias participated in two one-night sleep study sessions on March 2 and 20, 2006.*fn47 After receiving a diagnosis of severe obstructive sleep apnea,*fn48 Mr. Bias returned to his physician and was treated for acute pharyngitis and sinusitis on March 22;*fn49 coughing with phlegm that kept him awake at night on May 4;*fn50 and sore throat and congestion on October 31, 2006.*fn51

Shortly before Mr. Bias applied for disability benefits on February 28, 2007, he complained to his physician that he experienced back and hip pain that disrupted his sleep at night.*fn52 A right hip x-ray showed some progression of Mr. Bias's mild degenerative arthritis since 2001, but no significant change from that study.*fn53

After February 2007, there is another gap in Mr. Bias's medical records that spans two years until January 2009. Mr. Bias testified that he went to see some neighborhood doctors during this time period, but could not see his regular family practitioners because he could no longer afford his medical coverage.*fn54 He was able to obtain his blood pressure and acid reflux medication as samples from friends who work for pharmaceutical companies.*fn55 In January 2009, the insurance rates went back down for retirees, and he once again could afford to go back to his regular doctors.*fn56

In January 2009, Mr. Bias again complained of back and hip pain.*fn57 Although another round of hip x-rays revealed no significant change other than mild degeneration,*fn58 Mr. Bias's physician referred him to an orthopedic specialist.*fn59 The specialist examined Mr. Bias on February 2 and 23, 2009,*fn60 noting that Mr. Bias's right hip had been painful for about six years, and he was having difficulty ambulating.*fn61 The specialist ordered an MRI study of Mr. Bias's hip and lumbar spine, which revealed "possible herniated lumbar disk ... which could be causing the patient's right hip pain."*fn62

The orthopedic specialist referred Mr. Bias to a neurosurgeon.*fn63 The neurosurgeon saw Mr. Bias on April 21, 2009, and noted that the orthopedic specialist did not believe the arthritis in Mr. Bias's hip was a cause of his back pain, opining that degenerative disk disease "might certainly be a big cause of his pain."*fn64 He recommended non-operative measures before attempting any type of surgery.*fn65 The neurosurgeon then referred Mr. Bias for pain management and epidural injections.*fn66 Mr. Bias received three epidural injections on May 12, June 2, and June 23, 2009.*fn67 During his July 6, 2009, follow-up exam after the third injection, Mr. Bias reported a sixty percent reduction in overall pain, but he still complained of axial low back pain, radicular pain, and hip pain.*fn68
B. SSA History In addition to Mr. Bias's medical records, the ALJ also considered information Mr. Bias reported to the SSA. In Mr. Bias's Activities of Daily Living questionnaire, completed in April 2007 in conjunction with his disability benefits application, Mr. Bias provided details about his ability to perform tasks around the house.*fn69 Mr. Bias reported that he performed chores like laundry or making a bed about once a week for two hours and felt tired afterward.*fn70 In addition, he could shop or cook for about one hour before needing to sit.*fn71 He stated that he cut grass once per week during the summer.*fn72 However, by that time, he could no longer run or lift weights, and he could only climb four-to-five stairs at a time.*fn73 Mr. Bias further reported that he walked with the assistance of a cane when his back went out.*fn74

State agency physicians reviewed Mr. Bias's medical record evidence in May and August 2007.*fn75 Francis Vincent, MD, denied Mr. Bias's claim because there was insufficient evidence to evaluate Mr. Bias's alleged impairments before his date last insured.*fn76 Three months later, after a request for reconsideration, David Mack, MD, affirmed Dr. Vincent's findings and reiterated that there was insufficient evidence prior to December 31, 2005, to determine disability.*fn77

C. ALJ Hearing

On October 1, 2009, ALJ Helen Cropper conducted a hearing regarding Mr. Bias's disability claim.*fn78 Mr. Bias appeared in person and was represented by counsel.*fn79 The ALJ heard testimony from Mr. Bias and Vocational Expert Pamela Tucker.*fn80

Mr. Bias testified that he was not currently working.*fn81 Mr. Bias stated that his only source of income was his pension from U.S. Steel,*fn82 and he doubted his ability to perform any kind of work.*fn83 He explained that even though he believed he would be able to perform ...

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