Austin v. Massanari

• Decision Date: 20 July 2001
• Docket Number: No. CIV. A. CV00-1189-M.,CIV. A. CV00-1189-M.
• Citation: 162 F.Supp.2d 517
• Court: U.S. District Court — Western District of Louisiana
• Parties: Danny L. AUSTIN, Appellant v. Larry G. MASSANARI,<SMALL><SUP>1</SUP></SMALL> Acting Commissioner of Social Security, Appellee

162 F.Supp.2d 517

Danny L. AUSTIN, Appellant v. Larry G. MASSANARI,¹ Acting Commissioner of Social Security, Appellee

No. CIV. A. CV00-1189-M.

United States District Court, W.D. Louisiana. Monroe Division.

July 20, 2001.

COPYRIGHT MATERIAL OMITTED

Alex W. Rankin, Rankin Yeldell et al., Bastrop, LA, for plaintiff.

John A. Broadwell, U.S. Atty's Office, Shreveport, LA, for defendant.

JUDGMENT

JAMES, District Judge.

For the reasons contained in the Report and Recommendation of the Magistrate Judge previously filed herein, and after an independent review of the entire record, and concurring with the Magistrate Judge's findings under the applicable law;

IT IS ORDERED that Danny L. Austin's appeal from the final decision of the Commissioner of Social Security is GRANTED and that the case is REMANDED FOR FURTHER PROCEEDINGS.

REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

KIRK, United States Magistrate Judge.

Danny L. Austin ("Austin") filed an application for supplemental security income ("SSI") on October 20, 1993 (protective filing date September 10, 1993) (Tr. p. 80), alleging disability due to "back problems, blackout spells, polio, heart problems, and have been a heavy drinker" (Tr. p. 117). That application was denied by the Social Security Administration ("SSA") both initially (Tr. p. 83) and on reconsideration (Tr. p. 106).

A de novo hearing was held before an administrative law judge ("ALJ") on December 4, 1996 (Tr. pp. 37-79), at which Austin appeared with his attorney and his daughter. The ALJ found that, although Austin has severe impairments of "residual effects from polio as a child affecting his lower extremities and causing back problems, a history of chronic obstructive pulmonary disease, and a history of non-severe alcohol abuse with depressive symptoms and episodes of blacking out" (Tr. p. 24), and has an eighth grade education, Austin is able to voluntarily control his use of alcohol and has the residual functional capacity to perform the full range of sedentary work. The ALJ concluded that a finding of "not disabled" was directed by Section 416.969 of Regulations No. 16 and Rule 201.18, Table No. 1, Appendix 2, Subpart P, Regulations No. 4, as of the date of his decision on August 21, 1997 (Tr. pp. 25-26). On April 21, 2000, the Appeals Council declined to review the ALJ's decision, and the ALJ's decision became the final decision of the Commissioner of Social Security ("the Commissioner").

Austin next filed this appeal for judicial review of the final decision of the Commissioner, which was referred to the undersigned Magistrate Judge for report and recommendation in accordance with a standing order of this court.

Scope of Review

In considering Social Security appeals such as the one that is presently before the Court, the Court is limited by 42 U.S.C. § 405(g) to a determination of whether substantial evidence exists in the record to support the Commissioner's decision and whether there were any prejudicial legal errors. Crouchet v. Sullivan, 885 F.2d 202, 204 (5th Cir.1989). For the evidence to be substantial, if must be relevant and sufficient for a reasonable mind to support a conclusion; it must be more than a scintilla but need not be a preponderance. Falco v. Shalala, 27 F.3d 160, 162 (5th Cir.1994), citing Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971). Finding substantial evidence does not involve a simple search of the record for isolated bits of evidence which support the Commissioner's decision but must include a scrutiny of the record as a whole. The substantiality of the evidence must take into account whatever in the record fairly detracts from its weight. Singletary v. Bowen, 798 F.2d 818, 823 (5th Cir.1986).

A court reviewing the Commissioner's decision may not retry factual issues, reweigh evidence, or substitute its judgment for that of the fact-finder. Fraga v. Bowen, 810 F.2d 1296, 1302 (5th Cir.1987); Dellolio v. Heckler, 705 F.2d 123, 125 (5th Cir.1983). The resolution of conflicting evidence and credibility choices is for the Commissioner and the ALJ, rather than the court. Allen v. Schweiker, 642 F.2d 799, 801 (5th Cir.1981). Also, Anthony v. Sullivan, 954 F.2d 289, 295 (5th Cir.1992). The court does have authority, however, to set aside factual findings which are not supported by substantial evidence and to correct errors of law. Dellolio, 705 F.2d at 125. But to make a finding that substantial evidence does not exist, a court must conclude that there is a "conspicuous absence of credible choices" or "no contrary medical evidence." Johnson v. Bowen, 864 F.2d 340 (5th Cir.1988); Dellolio, 705 F.2d at 125.

Summary of Pertinent Facts

Austin was 48 years old at the time of his December 1996 administrative hearing (Tr. p. 43), had an eighth grade education (Tr. p. 44), and had past relevant work experience running a machine at a machine company (1972-1975), as a sheet metal worker (1975-1979), doing carpentry and electrical work for a construction company (1979-1980), and doing odd jobs such as painting, yard work and electrical work (1981-1994) (Tr. p. 134).

Austin started drinking when he was 16 years old; he began drinking very heavily in 1978, and subsequently went into detox (Tr. p. 203). In June 1994, Austin was treated at the Pines Treatment Center for chemical dependency on alcohol (Tr. p. 172). Austin completed his treatment and was discharged in August 1994, and then attended a vocational rehabilitation program (Tr. p. 172, 202). While at the Pines Treatment Center, Austin was tested and diagnosed with TB infection but he did not have the disease, and was treated for six months with INH and B-6 (Tr. p. 163, 203).

The vocational rehab client history (Tr. p. 202) reflects that Austin has no teeth, was undergoing treatment for TB, had polio as a child (18 months old) which required eight months in an iron lung, resulted in fourteen surgeries, and steel pins in both feet to hold them straight (Tr. p. 202-4). Austin walks with a limp (Tr. pp. 202-4). The report also shows that Austin had three prior DWI's for which he has been incarcerated, and had no income and no place to live (Tr. pp. 202-204). Austin has five children and is divorced (Tr. p. 204). Austin appeared to have low average intelligence, and stated his hobbies are fishing and reading (Tr. p. 204). Austin can climb a ladder but cannot stand on it very long, and does not have a mental illness (Tr. pp. 202-4).

At the request of the SSA, Austin was evaluated in December 1994 by Dr. Dan John LaFleur, a family practitioner, for both a disability evaluation and complaints of chest pain (Tr. pp. 206-8). Austin walked with a slight limp and extreme muscle wasting was noted in both calves, as well as small, contracted feet, and hammer toes bilaterally (Tr. p. 207). Austin's EKG and chest x-ray were normal, and he was diagnosed with exertional angina; it was recommended that he be evaluated by a cardiologist and a cardiovascular surgeon (Tr. p. 207).

In September 1995, Austin was treated for seizures (including grand mal) related to alcohol withdrawal (Tr. pp. 219-31).

In May 1996, Austin underwent a mental status examination at the request of the SSA (Tr. pp. 252-56). Dr. E.H. Baker, a psychologist, found that, overall, Austin's sustained concentration is poor, his persistence is fair, he is able to interact appropriately on a one to one basis, he has adequate social interaction, social judgment and insight, and he has fair adaptation (Tr. p. 253-54). Dr. Baker found Austin has an alcohol problem (Austin stated he had not imbibed alcohol since December 1995), a back problem, breathing problems, and a history of polio which left him crippled (Tr. p. 254), and diagnosed "Alcohol-Related Disorder" and "Depressive Disorder" (Tr. p. 253). Dr. Baker stated Austin's prognosis was guarded because of his lengthy history of drinking and that Austin's physical problems resulting from polio appeared to be increasing (Tr. p. 254). Dr. Baker stated that Austin was not competent to manage disability funds if awarded because of his alcohol problems, and recommended that Austin be referred to vocational rehabilitation for training (Tr. p. 254).

Austin also underwent a physical examination by Dr. Narendra Kutnikar (speciality not stated) at the request of the SSA in June 1996 (Tr. pp. 257-59). Dr. Kutnikar found wasting in both legs with talipes equinus varus deformity² (clubfoot) of both feet, a shorter right leg and wobbly gait, but no localized sensory losses; Austin was unable to walk on his heels or his toes and had poor balance (Tr. p. 258). Dr. Kutnikar noted that Austin is not able to squat and arise from a squatting position, and has some difficulty with bending over, but the range of motion in Austin's dorsolumbar spine was intact (Tr. p. 258). Dr. Kutnikar noted that Austin has chronic obstructive pulmonary disease which causes shortness of breath on exertion and which was being treated with an Atrovent inhaler (Tr. p. 258). Austin also had a consultative pulmonary function study, which revealed an essentially normal spirometry (Tr. p. 266). Austin was diagnosed with mild to moderate chronic obstructive pulmonary disease, a history of alcohol abuse, atypical chest pain which was probably caused by gastroesophageal reflux disease, and a history of polio affecting his legs (Tr. pp. 259-60). Austin was given limitations of lifting and carrying a maximum of 15 to 20 pounds occasionally, stand and walk no more than three to six hours in an eight hour day, only occasionally climb or balance, and never stoop, crouch, kneel or crawl (Tr. p. 261-62).

Austin was seen at E.A. Conway Medical Center in October 1996 for complaints of chest pain; he was noted to have been drinking (Tr. p. 276). After a full examination, Austin was discharged with a diagnosis of alcohol abuse, alcoholic liver disease, chest wall pain and COPD; he was prescribed Atrovent inhaler and Ventolin...