Fleming v. Barnhart

• Decision Date: 05 September 2003
• Docket Number: No. CIV.L-02-1825.,CIV.L-02-1825.
• Citation: 284 F.Supp.2d 256
• Parties: Dwayne A. FLEMING, Plaintiff v. Jo Anne B. BARNHART, Commissioner of Social Security, Defendant.
• Court: U.S. District Court — District of Maryland

Page 256

284 F.Supp.2d 256

Dwayne A. FLEMING, Plaintiff v. Jo Anne B. BARNHART, Commissioner of Social Security, Defendant.

No. CIV.L-02-1825.

United States District Court, D. Maryland.

September 5, 2003.

Dwayne A. Fleming, pro se, Montgomery Village, MD, for Plaintiff.

Kristine L. Sendek Smith, Neil R. White, Office of the United States Attorney Thomas M. DiBiagio, Baltimore, MD, for Defendant.

ORDER

LEGG, Chief Judge.

Upon consideration of the Report and Recommendation of United States Magistrate Judge Susan K. Gauvey, entered August 15, 2003, and no objections having been filed, it is this 5th day of September, 2003, by the United States District Court for the District of Maryland,

ORDERED:

1. That the Report and Recommendation is hereby AFFIRMED and ADOPTED;

2. That the defendant's motion for summary judgment is DENIED;

3. That this case be REMANDED back to the agency for further proceedings;

4. That the Clerk of Court shall mail copies of this Order to plaintiff and to counsel for the defendant; and

5. That the Clerk of Court is directed to CLOSE this case on this Court's docket.

Report and Recommendation

Plaintiff, Dwayne A. Fleming, filed this action seeking judicial review, pursuant to 42 U.S.C. § 405(g), of the final decision of the Commissioner of the Social Security Administration ("the Commissioner"), who denied his claim for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI, respectively, of the Social Security Act ("the Act").

Currently pending before the Court is the Commissioner's motion for summary judgment. (Paper No. 13). Plaintiff is pro se and has not filed a cross motion or a response to defendant's motion.¹ No hearing is necessary in this case. Local Rule 105.6. For the reasons set forth below, the undersigned recommends that the defendant's motion for summary judgment be denied and the case remanded, as the Commissioner's denial of benefits was reached by application of incorrect legal standards.

I. Procedural History

Plaintiff filed an application for DIB and SSI on October 17, 2000. (R. 73-75). Plaintiff alleged disability since June 21, 2000, because of a right tibial plateau fracture. (R. 79). Plaintiff's claim was denied, both initially and upon reconsideration. (R. 45-46, 47-49, 54-55, 146-49). Thereafter, plaintiff requested and received an administrative hearing, which was held on October 12, 2001. (R. 17-44). On February 28, 2002, the Administrative Law Judge ("ALJ") issued a written decision denying plaintiff's claim. (R. 7-16). The Appeals Council denied review on May 1, 2002. (R. 4-5). This makes the ALJ's decision a final decision of the Commissioner, and the instant case ripe for review.

II. Factual Background

Plaintiff was born on January 7, 1960, and thus at the time of the ALJ's decision was 42 years old. (R. 22). He is separated from his wife and has three children under the age of eighteen. (R. 22). He lives with his children as well as with his aunt and her husband. (R. 22, 24). He earned a general equivalency degree in 1981 and served in the U.S. Army from 1977 until 1985.² (R. 25, 85, 93). He subsequently earned a certificate in air conditioning and refrigeration technology in 1986 and was employed in the civilian work force as a maintenance engineer, fast-food restaurant manager and delivery driver from 1986 until June 20, 2000. (R. 26, 80, 92-93).

A. Medical Evidence

On June 20, 2000, plaintiff was involved in a car accident in which he fractured his right leg. (R. 118).

1. Plaintiff's Doctors

Following the accident, Plaintiff was admitted and treated at Montgomery General Hospital. (R. 82, 113-124). He sustained a right tibial plateau fracture as his only injury. (R. 118). Upon examination, it was determined that plaintiff was otherwise in good health with no chronic medical conditions. (Id.). However, it was also noted that he was obese, as he weighed 325 pounds and was 5 feet, 7 inches tall. (Id.). Imaging revealed that plaintiff's fracture comprised an "[e]xtensive comminuted³ fracture of the posterior and lateral tibial plateau with displaced ... fracture fragments posteriorly." (R. 120).

Plaintiff was subsequently transferred to Suburban Hospital on June 22, 2000 where he apparently underwent surgical repair to his right leg.⁴ (R. 83, 116, 119). On July 21, 2000, plaintiff apparently was discharged from Suburban Hospital and was admitted either at Medi-Plex or Sunbridge Montgomery Village Care and Rehabilitation for custodial care, as he could not yet move his leg.⁵ (R. 83, 133). The record indicates that he was still in this nursing facility⁶ as of November 29, 2000⁷ (R. 131), but was released on December 7, 2000.⁸ (R. 95, 130). Thus, plaintiff was either hospitalized or an in-patient at a nursing or rehabilitative facility for over five months after his accident, although there are no surgical, in-patient, or nursing or rehabilitative facility records before the Court.

On August 25, 2000, two months after his accident, plaintiff's treating physician, James M. Weiss, M.D.,⁹ examined him. (R. 133). Dr. Weiss noted that he was taking Vicodin,¹⁰ and that his leg was non-weight bearing. (Id.) Dr. Weiss found that his pin sites and knee incision were benign and that he was neurovascularly intact. (Id.). His x-rays revealed "excellent position of his fracture and reduction." (Id.). Dr. Weiss planned to remove plaintiff's fixator the following week and "start him on active assist ... and passive range of motion to his right knee." (Id.). Dr. Weiss noted plaintiff would continue to be non-weight bearing for another month after that. (Id.).

On September 22, 2000, Dr. Weiss again examined plaintiff. (R. 132). Dr. Weiss noted that plaintiff was in a wheelchair and that his leg lacked "a few degrees of full extension" and "quite a bit of flexion." (Id.). His x-rays revealed that the fractures were healing well with intact hardware. (Id.). He stated that plaintiff "is beginning to get motion now out of the fixator [and] [i]s getting therapy for this." (Id.). Dr. Weiss noted that plaintiff could "begin weight-bearing as tolerated[,]" and suggested starting with pool therapy, followed by weight-bearing on dry land and a stationary bicycle. (Id.). Dr. Weiss planned to see plaintiff again in a month.¹¹

On November 29, 2000, Dr. Weiss reexamined plaintiff. (R. 131). He noted that plaintiff was still at the nursing home, was doing aquatic therapy, and was "weight bearing as tolerated", although he arrived in a wheel chair. (Id.). The x-rays revealed "essentially anatomic fixation." (Id.). Plaintiff had active quad extension, but lacked "about five to ten degrees of full extension." (Id.). Plaintiff had flexion to almost 90 degrees. (Id.). Dr. Weiss indicated that he planned to put plaintiff on crutches and that he "will continue water therapy and start PT." (Id.). He also noted that he had given plaintiff a handicapped sticker, and that when he could walk independently he could begin to drive. (Id.).

On December 20, 2000, Dr. Weiss again examined plaintiff, noting that he had been discharged from subacute care since his last exam. (R. 130). Dr. Weiss noted that plaintiff was using a walker, had been ambulating independently, was doing aquatic therapy, and was using Vicodin on an occasional basis. (Id.). Plaintiff had approximately 30-40 degrees of total motion in his right knee, and had some bilateral lower extremity swelling. (Id.). The X-rays revealed excellent position of his fixation, no loss of the reduction, and no evidence of any arthritis. (Id.). Dr. Weiss transitioned plaintiff to a cane, but noted that he might still require intermittent use of the walker. (Id.). Dr. Weiss also stated that "it would be nice if he could get some physical therapy for range of motion of the knee ...." (Id.).

On February 5, 2001, Dr. Weiss re-examined plaintiff. (R. 129). Dr. Weiss noted that plaintiff was not on any pain medication at that time and was ambulating with a left cane. (Id.). However, he had some stiffness in his knee and occasional clicking or popping. (Id.). Dr. Weiss found that plaintiff had "about full extension" and flexion "to about 80 degrees." (Id.). However, he also stated that the exam was complicated by plaintiff's size. (Id.). The X-rays showed good position of his fracture and screw placement. (Id.). Dr. Weiss noted that plaintiff now had medical assistance and thus wrote a prescription for therapy. (Id.). Finally, Dr. Weiss stated that he "would like [plaintiff] to progress to walking without a cane" and opined that he could "do a sedentary job at this point." (Id.).

On June 25 and July 2, 2001, based on an examination of plaintiff conducted on June 25, 2001, Dr. Weiss completed a Medical Evaluation Form and a Medical Report in which he indicated that plaintiff was unable to work and that the impairment was permanent. (R. 143, 145). Dr. Weiss noted that the causes of plaintiff's impairment were knee pain and internal derangement¹² as a result of his fracture as well as obesity. (R. 143, 144). Dr. Weiss indicated that plaintiff needed physical therapy. (R. 143, 144).

2. Government Evaluations

On November 14, 2000, a non-examining reviewer completed a medical summary record in which he noted that plaintiff's fractures were healing and concluded that the impairment "will not last 12 months." (R. 127). The reviewer had apparently considered the two examinations conducted by Dr. Weiss in August and September of 2000. (Id.).

On May 14, 2001, a second non-examining reviewer completed a physical residual functional capacity assessment. The examiner indicated, regarding exertional limitations, that plaintiff could: occasionally lift and/or carry 50 pounds; frequently lift and/or carry 50 pounds or more; stand and/or walk (with normal breaks) for a total of about 6 hours in an 8-hour workday; sit about 6 hours in an 8-hour workday; and had an unlimited ability to push and/or...