Kieser v. Barnhart

• Decision Date: 08 March 2002
• Docket Number: No. 6:01CV-236-ORL-19JGG.,6:01CV-236-ORL-19JGG.
• Parties: Louis H. KIESER Plaintiff, v. Jo Anne BARNHART, Commissioner of the Social Security Administration, Defendant.
• Court: U.S. District Court — Middle District of Florida

222 F.Supp.2d 1298

Louis H. KIESER Plaintiff, v. Jo Anne BARNHART, Commissioner of the Social Security Administration, Defendant.

No. 6:01CV-236-ORL-19JGG.

United States District Court, M.D. Florida, Orlando Division.

March 8, 2002.

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Shea A. Fugate, Law Office of Shea A. Fugate, Orlando, FL, James Wilson Keeter, Morgan Colling & Gilbert, Orlando, FL, for plaintiff.

Susan Roark Waldron, Assistant United States Attorney, Tampa, FL, for defendant.

ORDER

FAWSETT, District Judge.

This case comes before the Court upon the following matter:

(1) Report and Recommendation (Doc. No. 12).

BACKGROUND

On December 17, 1998, Plaintiff filed a claim for disability benefits, claiming disability as of March 14, 1997.(R. 68-71). Kieser was 41 years old on the date he filed for a period of disability.(R.69). He completed the eleventh grade, obtained a GED, and received vocational training in welding, gas free engineering, and fire fighting while in the United States Coast Guard from 1979-1997. (R.25). He has past relevant work experience performing ship and shore maintenance, construction, welding, plumbing, and carpentry in the Coast Guard. (R. 25-26, 75). His primary occupation while in the Coast Guard was that of a damage controlman.(R. 26, 87-88). Kieser's alleged disability is based on an August 1993 neck injury—a broken neck-cervical fracture—sustained in a diving accident.(R. 27, 74, 264). From November 1993 through February 1997, Kieser continued to serve the Coast Guard on a "half-duty" status. (R. 74, 210). On February 13, 1997, the Coast Guard retired Kieser because he could no longer perform his work duties by reason of a "permanent physical disability." (R. 25, 71, 74, 157). Kieser alleges that his injury rendered him disabled on March 14, 1999. (R. 69). His disability insurance status expires on December 31, 2002. (R. 14).

On March 9, 2000, the Honorable Chester G. Senf, Administrative Law Judge ("ALJ"), held a 30 minute hearing on Plaintiff's claim in Orlando, Florida. Attorney James Keeter represented Kieser at the hearing. (R. 22-48). On May 18 2000, the ALJ issued his decision that Plaintiff was not entitled to disability and to disability benefits. (R. 10-16). The ALJ found that Plaintiff retained the residual functional capacity to perform the full range of physical exertional requirements of light and sedentary work. (R. 15, Finding 6). The ALJ applied the Medical-Vocational Guidelines and concluded that Plaintiff was not disabled. (R. 15, Finding 10).

On December 8, 2000, the Appeals Council denied review. (R. 2-3). On February 23, 2000, after obtaining an extension of time, Plaintiff timely appealed the Appeals Council's decision to deny review to the United States District Court. (Doc. No. 1). The United States Magistrate Judge heard oral argument of the appeal on December 18, 2001. (Doc. No. 9).

Plaintiff assigns three errors to the Commissioner. First, Plaintiff claims that the Commissioner erred in not obtaining a vocational expert when the record shows that Kieser suffered from non-exertional impairments that precluded the sole use of grids. Second, Plaintiff claims that the Commissioner improperly evaluated the non-exertional impairment of pain because substantial evidence shows that Plaintiff sustained a traumatic injury resulting in degenerative joint disease and traumatic arthritis that could reasonably be expected to cause the alleged pain. Third, Plaintiff claims that the Commissioner erred in finding that Plaintiff was not "fully credible" after relying on inaccurate or misleading references to the medical evidence.

The Commissioner argues that the ALJ made the correct decision because Plaintiff failed to present sufficient evidence to demonstrate his disability during the time he alleges he was unable to perform work activity. The Commissioner contends that the ALJ's decision was supported by substantial evidence and decided by the proper legal standards.

STANDARD OF REVIEW

In reviewing rulings by U.S. Magistrate Judges, District Judges are required to apply a "clearly erroneous" standard. 28 U.S.C. § 636(b)(1)(A); Massey v. United Transp.Union, 868 F.Supp. 1385, 1388 (S.D.Ga.1994), aff'd, 65 F.3d 193, 1995 WL 499994 (11th Cir.1995). "A finding is clearly erroneous if after reviewing the entire record, the reviewing court is left with the definite and firm conviction that a mistake has been made." Anderson v. City of Bessemer City North Carolina, 407 U.S. 564, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985)(citing United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948)).

The scope of this Court's review of an order by an ALJ is limited to determining whether the ALJ applied the correct legal standards, McRoberts v. Bowen, 841 F.2d 1077, 1080 (11th Cir.1988), and whether the findings are supported by substantial evidence, Richardson v. Perales, 402 U.S. 389, 390, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). When the Commissioner's decision is supported by substantial evidence, the district court will affirm, even if the reviewer would have reached a contrary result, and even if the reviewer finds that the evidence preponderates against the Commissioner's decision. Edwards v. Sullivan, 937 F.2d 580, 584, n. 3 (11th Cir.1991); Barnes v. Sullivan, 932 F.2d 1356,1358 (11th Cir.1991).

The district court may remand a case to the Commissioner for a rehearing under sentence four of 42 U.S.C. § 405(g), under sentence 6 of 42 U.S.C. § 405(g), or under both sentences. Jackson v. Chater, 99 F.3d 1086 (11th Cir.1996). To remand under sentence four, the district court must either find that the Commissioner's decision is not supported by substantial evidence, or that the Commissioner incorrectly applied the law relevant to the disability claim. Jackson, 99 F.3d at 1090-91. Under a sentence-four remand, the district court may enter a judgment affirming, modifying or reversing the decision of the Commissioner with or without remanding the cause for a re-hearing. On remand under sentence four, the ALJ should review the case on a complete record, including any new material evidence. Reeves v. Heckler, 734 F.2d 519, 522 n. 1 (11th Cir. 1984). After a sentence-four remand, the district court enters a final and appealable judgment and then loses jurisdiction. Jackson, 99 F.3d at 1089, 1095.

The Magistrate Judge's Report and Recommendation provides a thorough review of Plaintiff's medical history and a very careful and complete statement of the relevant law. The court does not need to repeat the Magistrate Judge's recitations of the facts or applicable law in this order.

The Magistrate Judge found that the ALJ's decision was not supported by substantial evidence and is not decided by the proper legal standards. Specifically, the Magistrate Judge found that the Commissioner did not meet her burden of determining what work Plaintiff could perform that exists in the national economy, once it was established that Plaintiff could not return to his prior work. Foote v. Chater, 67 F.3d 1553,1559 (11th Cir.1995). In deciding whether the Commissioner has met this burden, the ALJ must develop a full record regarding the vocational opportunities available to a claimant. Id. at 1558. The ALJ failed to do so in the instant case.

The Magistrate also found that the ALJ failed to consider the extent to which Plaintiff's alleged pain could be reasonably accepted as consistent with the objective medical evidence. This is particularly important because pain is considered a non-exertional impairment. Exclusive reliance on the grids, as the ALJ did in this case, is inappropriate when the claimant suffers from significant non-exertional factors. Id. at 1558. Where nonexertional limitations are alleged, the preferred method of demonstrating the claimant can perform specific work is through the testimony of a vocational expert. Id. at 1559; Chester v. Bowen, 792 F.2d 129, 132 (11th Cir.1986).

Finally, the Magistrate Judge found that the ALJ did not articulate with the specificity required by law, the reasons why he discounted the Plaintiff's subjective complaints relating to the degree of pain described by Plaintiff. When an ALJ decides not to credit a claimant's testimony about pain, the ALJ must articulate specific and adequate reasons for doing so, or the record must be obvious as to the credibility finding. Foote, 67 F.3d at 1561-62; Jones v. Department of Health and Human Services, 941 F.2d 1529, 1532 (11th Cir.1991). As a matter of law, the failure to articulate the reasons for discrediting subjective pain testimony requires that the testimony be accepted as true. Foote, 67 F.3d at 1561-62; Cannon v. Bowen, 858 F.2d 1541, 1545 (11th Cir.1988). A lack of a sufficiently explicit credibility finding becomes a ground for remand when credibility is critical to the outcome of the case. See Smallwood v. Schweiker, 681 F.2d 1349, 1352 (11th Cir.1982).

The Magistrate Judge found that the ALJ's articulated reasons, resulting from an incomplete or inaccurate reading of the record, did not constitute substantial evidence upon which to reject Plaintiff's complaints as to the degree of pain described by Plaintiff. Moreover, the ALJ's decision does not indicate whether the ALJ accorded any weight to the VA's disability rating.¹ The degree of pain alleged by Plaintiff is a significant non-exertional impairment. Accordingly, the Magistrate Judge found that the ALJ erred in his exclusive reliance on the grids.

For the foregoing reasons, the Magistrate Judge recommended that the Commissioner be reversed and remanded under sentence four of 42 U.S.C. § 405(g). The Magistrate Judge directed that, upon remand, the Commissioner should develop a full and fair record of Plaintiff's residual functional capacity, in light of the limitations (including pain) assessed by his treating and consulting physicians. The Commissioner shall also obtain the opinion of a...