Baybrook v. Chater

• Decision Date: 14 August 1996
• Docket Number: No. 94 CV 282.,94 CV 282.
• Citation: 940 F.Supp. 668
• Court: U.S. District Court — District of Vermont
• Parties: Robert E. BAYBROOK v. Shirley S. CHATER<SMALL><SUP>1</SUP></SMALL>, Commissioner of Social Security.

940 F.Supp. 668

Robert E. BAYBROOK v. Shirley S. CHATER¹, Commissioner of Social Security.

No. 94 CV 282.

United States District Court, D. Vermont.

August 14, 1996.

Beth A. Danon, Mickenberg, Dunn, Sirotkin & Dorsch, Burlington, VT, for plaintiff.

Christopher B. Baril, Asst. U.S. Atty., Rutland, VT, for defendant.

OPINION AND ORDER

SESSIONS, District Judge.

Plaintiff-appellant Robert Baybrook ("Baybrook") brought an action pursuant to 42 U.S.C. 405(g), seeking review of the decision of the Commissioner of Social Services ("Commissioner") denying his claim for disability benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401 et seq. ("the Act"). United States Magistrate Judge Jerome Niedermeier affirmed the Commissioner's decision. On November 20, 1995, Baybrook appealed the Magistrate's order pursuant to 28 U.S.C. § 636(c)(4). On appeal, Baybrook argues that the Administrative Law Judge ("ALJ") did not properly evaluate the evidence, misapplied the treating physician rule, and disregarded pertinent evidence of considerable weight. For the reasons set forth below, the Court reverses the Secretary's decisions denying Baybrook benefits because the ALJ applied the incorrect legal standard in assessing the treating physician rule. Accordingly the action is remanded for further proceedings consistent with this opinion and order.

BACKGROUND

Baybrook was insured for Social Security Disability ("SSD") benefits under Title II of the Social Security Act until March 31, 1987. He was 43 years old when his insured status expired. Baybrook applied for disability benefits with the Social Security Administration ("SSA") District Office in Burlington, Vermont, on September 1, 1992, for a period of disability beginning on October 10, 1981, claiming inability to work due to back pain and nerve problems. Baybrook's application was denied on the ground that he was not disabled prior to March 31, 1987, the date his insured status expired.² Baybrook requested reconsideration on February 26, 1993, and again his application was denied. On August 10, 1993, Baybrook requested a hearing before an ALJ to review his September 1, 1992, application for Title II benefits.

On December 7, 1993, the ALJ, Robert Klingebiel, held a de novo hearing at which Baybrook, his attorney, his wife, and a vocational expert appeared. Baybrook testified that he was 49 years old, had graduated from high school, had no further education or vocational training, and had an employment background which included mostly security guard work.

Baybrook's first back injury, according to his testimony, occurred after he fell 35 to 40 feet from a gondola tower while working at a ski resort in the late 1960's. That fall resulted in severe head injuries and ligament and muscle damage. Baybrook testified that he last worked as a security guard for a ferry company in Burlington, Vermont, and was forced to leave this position in 1981 after falling down a ladder and reinjuring his back. As a result of this injury, he sought medical attention from Dr. Robert Zelazo and Dr. Patrick L. O'Connor and collected Worker's Compensation.

Baybrook further testified that following the 1981 ladder incident, he could not return to his past work as a security guard. Eventually, in an attempt to get back to work, he entered a vocational rehabilitation program. The program set him up in his own lawn care business. The business eventually failed because he was only able to ride the tractor for short periods, was unable to rake or trim, and could only work two hours a day, four days a week.

Baybrook also testified that he was elected Berkshire town constable in 1987 and served through 1991. This position only required an hour a week of his time. Baybrook told the ALJ that when he was not doing constable work or mowing lawns, he sat and lay down at his house.

The ALJ reviewed Baybrook's medical records, including the records of his treating physician Dr. Zelazo. Dr. Zelazo's reports indicate that Baybrook suffered from back pain in June 1984 and January 1986. In the January 1986 report, Dr. Zelazo recommended that Baybrook be re-fitted for a back brace. Dr. Zelazo did not prescribe pain medication in June 1984 or in January 1986 and did not report complaints of back pain after January 1986.

The ALJ considered a November 29, 1993, letter from Dr. Zelazo stating that Baybrook's back condition was disabling prior to March 31, 1987. Based on his records, Dr. Zelazo surmised that Baybrook had back problems since the mid 1960's. Moreover, he opined that Baybrook's back condition kept him from sustaining full-time employment beginning in October 1981.

The medical records before the ALJ also contained reports prepared by Chronic Pain Rehabilitation Services, University Health Center, Burlington, Vermont. The Rehabilitation Service's records indicated that Dr. Raymond Milhous directed an evaluation of Baybrook's condition by a psychologist, a physical therapist, and an occupational therapist. Dr. Milhous' physical examination report noted that Baybrook had discomfort when attempting exercises, moved cautiously, and had tenderness over his entire lower back. The psychological report suggested that Baybrook was a reasonably passive-dependent individual who would therefore have difficulty complying with his medical treatment. The occupational therapy report indicated that Baybrook had a low activity level and poor body mechanics. Baybrook discontinued the pain rehabilitation program after cancelling or failing to keep numerous appointments.

The ALJ considered three additional reports. A November 15, 1983, letter from Dr. Stuart Graves stated that he had been treating Baybrook for a few months for major depression with melancholia. Dr. Graves prescribed anti-depressant medication and noted some improvement. Dr. Graves also indicated that Baybrook's back pain caused a loss of function which, in turn, fostered depression.

A July 5, 1984, report prepared by Dr. Dorothy Ford of University Orthopaedics stated that Baybrook had chronic back pain without radiation. The report indicated that Baybrook was unable to seek further psychiatric care for depression and participate in the pain rehabilitation program because he could not afford to travel to Burlington. Baybrook told Dr. Ford that the pain was constant and that he felt best when lying down and worst while driving. Dr. Ford's objective tests revealed limitation in forward flexion, but normal deep tendon reflexes, normal sensation to pin prick, and normal great toe extensor strength. Dr. Ford found that straight leg raising caused back pain at 60 degree bilaterally. Moreover, Dr. Ford reviewed X-rays from 1983 and considered them essentially normal. She told Baybrook that he was "undoubtably too young to obtain Social Security Disability on the basis of his complaint of pain alone." She also recommended that Baybrook work with Farm Family Rehabilitation in order to obtain some kind of work not involving manual labor.

A recent report prepared by Ms. Gail Engels, a social worker, indicated that she had examined Baybrook and concluded that he had a nonspecific personality disorder with dependant and self-defeating features.

Finally, the ALJ considered the testimony of vocational expert Michael Milne. Milne stated that a person who could not lift and carry 20 pounds but could lift and carry ten pounds, who had limited ability to stoop, kneel, crouch, crawl, and climb, and who needed to change his position periodically, could nevertheless work in some security guard positions. Milne indicated that there were 13,498 positions in New England that such a person could perform. Furthermore, Milne said there were 12,613 light duty cashier positions, 1,800 sedentary security monitor positions, 1,300 sedentary lot cashier positions, and 2,815 sedentary order taker clerk positions that such a person could perform.

On February 15, 1994, the ALJ determined that, as of March 21, 1987, the date of Baybrook's last insured status, Baybrook was not disabled for the purpose of receiving benefits under Title II of the Social Security Act. The basis for the ALJ's decision was that: Baybrook had not engaged in substantial gainful activity since October 10, 1981; he did not have an impairment or combination of impairments listed in or medically equivalent to any listed in Appendix I of the regulations; his testimony and allegations regarding subjective complaints, including pain, were not credible; he had the residual functional capacity for light and sedentary work except for performing repetitive bending and similar postural exertions; he could return to his past relevant work as a security guard; and, even if he could not return to his past relevant work as a security guard, he could perform sedentary work, listed by the vocational expert, with the same restrictions.

On April 14, 1994, Baybrook requested review by the Appeals Council.³ Baybrook submitted additional evidence, clinical records from Dr. Patrick O'Conner, to the Appeals Council on July 28, 1994. On July 29, 1994, the Appeals Council denied Baybrook's request for review stating that the ALJ fully considered and evaluated the evidence and reached the appropriate conclusion on the issues. Thus, the ALJ's decision became the final decision of the Commissioner subject to judicial review. See 20 C.F.R. § 404.981; 42 U.S.C. § 405(g).

On September 30, 1994, Baybrook filed a civil complaint with this Court seeking review of the Commissioner's decision, pursuant to 42 U.S.C. § 405(g). The parties consented to have the case heard and decided by the Magistrate with an appeal to this Court, pursuant to 28 U.S.C. 636(c) and Fed. R.Civ.P. 73(d). Baybrook then moved for summary judgment and the Commissioner cross-moved for summary judgment. On September 19, 1995, the Magistrate denied Baybrook's motion and granted the Commissioner's motion. Baybrook v. Chater, No. 94-cv-282, (D.Vt. Sept. 19, 1995) ...