Lafferty v. Astrue
| Decision Date | 30 May 2008 |
| Docket Number | No. 07-3120-CV-S-REL-SSA.,07-3120-CV-S-REL-SSA. |
| Citation | 559 F.Supp.2d 993 |
| Parties | Sharon LAFFERTY, Plaintiff, v. Michael J. ASTRUE, Commissioner of Social Security, Defendant. |
| Court | U.S. District Court — Western District of Missouri |
Larry J. Pitts, Springfield, MO, for Plaintiff.
Office of General Counsel — SSA Region 7, Lucinda S. Woolery, Office of the United States Attorney, Kansas City, MO, for Defendant.
ORDER DENYING PLAINTIFF'S MOTION FOR JUDGMENT AND GRANTING PLAINTIFF'S ALTERNATIVE MOTION FOR REMAND
Plaintiff Sharon Lafferty seeks review of the final decision of the Commissioner of Social Security denying plaintiffs application for disability benefits under Titles II and XVI of the Social Security Act ("the Act"). Plaintiff argues that (1) the ALJ erred in discounting the opinion of Dr. Troy Barton, (2) the ALJ ignored the third-party statements by plaintiffs friends and family, (3) the ALJ improperly evaluated plaintiff's credibility, (4) the ALJ erred in failing to consider that Medicaid has found plaintiff disabled, and (5) the hypothetical relied on by the ALJ did not include all of plaintiffs credible impairments. I find that the ALJ erred in failing either to discredit the opinion of Dr. Bowles that plaintiff suffers from mild mental restrictions or incorporate that opinion in the hypothetical. Therefore, the decision of the Commissioner will be reversed and this case will be remanded for further consideration.
On November 3, 2003, plaintiff protectively filed an application for supplemental security income alleging that she would become disabled as of November 12, 2003. On January 8, 2004, plaintiff applied for a period of disability and disability insurance benefits alleging that she had been disabled since November 12, 2003. Plaintiff's disability stems from degenerative disc disease, chronic low back pain after lumbar fusion, fibromyalgia, obesity, and depression. Plaintiff's application was denied on March 2, 2004. On June 10, 2005, a hearing was held before Denzel Busick, Administrative Law Judge. On October 26, 2005, the ALJ found that plaintiff was not under a "disability" as defined in the Act. On April 13, 2007, after considering additional evidence, the Appeals Council denied plaintiff's request for review. Therefore, the decision of the ALJ stands as the final decision of the Commissioner.
Section 205(g) of the Act, 42 U.S.C. § 405(g), provides for judicial review of a "final decision" of the Commissioner. The standard for judicial review by the federal district court is whether the decision of the Commissioner was supported by substantial evidence. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971); Mittlestedt v. Apfel, 204 F.3d 847, 850-51 (8th Cir.2000); Johnson v. Chater, 108 F.3d 178, 179 (8th Cir.1997); Andler v. Chater, 100 F.3d 1389, 1392 (8th Cir.1996). The determination of whether the Commissioner's decision is supported by substantial evidence requires review of the entire record, considering the evidence in support of and in opposition to the Commissioner's decision. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456 (1951); Thomas v. Sullivan, 876 F.2d 666, 669 (8th Cir.1989). "The Court must also take into consideration the weight of the evidence in the record and apply a balancing test to evidence which is contradictory." Wilcutts v. Apfel, 143 F.3d 1134, 1136 (8th Cir.1998) (citing Steadman v. Securities & Exchange Commission, 450 U.S. 91, 99, 101 S.Ct. 999, 67 L.Ed.2d 69 (1981)).
Substantial evidence means Richardson v. Perales, 402 U.S. at 401, 91 S.Ct. 1420; Jernigan v. Sullivan, 948 F.2d 1070, 1073 n. 5 (8th Cir.1991). However, the substantial evidence standard presupposes a zone of choice within which the decision makers can go either way, without interference by the courts. "[A]n administrative decision is not subject to reversal merely because substantial evidence would have supported an opposite decision." Id.; Clarke v. Bowen, 843 F.2d 271, 272-73 (8th Cir.1988).
An individual claiming disability benefits has the burden of proving she is unable to return to past relevant work by reason of a medically-determinable physical or mental impairment which has lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. § 423(d)(1)(A). If the plaintiff establishes that she is unable to return to past relevant work because of the disability, the burden of persuasion shifts to the Commissioner to establish that there is some other type of substantial gainful activity in the national economy that the plaintiff can perform. Nevland v. Apfel, 204 F.3d 853, 857 (8th Cir.2000); Brock v. Apfel, 118 F.Supp.2d 974 (W.D.Mo.2000).
The Social Security Administration has promulgated detailed regulations setting out a sequential evaluation process to determine whether a claimant is disabled. These regulations are codified at 20 C.F.R. §§ 404.1501, et seq. The five-step sequential evaluation process used by the Commissioner is outlined in 20 C.F.R. § 404.1520 and is summarized as follows:
1. Is the claimant performing substantial gainful activity?
Yes = not disabled.
No = go to next step.
2. Does the claimant have a severe impairment or a combination of impairments which significantly limits her ability to do basic work activities?
No = not disabled.
Yes = go to next step.
3. Does the impairment meet or equal a listed impairment in Appendix 1?
Yes = disabled.
No = go to next step.
4. Does the impairment prevent the claimant from doing past relevant work?
No = not disabled.
Yes = go to next step where burden shifts to Commissioner.
5. Does the impairment prevent the claimant from doing any other work?
Yes = disabled.
No = not disabled.
The record consists of the testimony of plaintiff and vocational expert Robert Sanders, in addition to documentary evidence admitted at the hearing and before the Appeals Council.
The record contains the following administrative reports:
Earnings Record
The earnings record establishes that plaintiff earned the following income from 1982 through 2004:
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Year Income Year Income
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1982 $ 1,611.64 1994 $ 4,381.29
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1983 0.00 1995 12,419.05
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1984 1,794.07 1996 17,546.01
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1985 1,935.07 1997 19,617.87
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1986 5,773.95 1998 19,488.72
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1987 7,734.08 1999 16,149.32
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1988 7,711.69 2000 25,222.52
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1989 9,249.13 2001 28,344.91
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1990 12,718.97 2002 32,668.00
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1991 10,385.18 2003 25,663.70
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1992 10,504.87 2004 0.00
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1993 2,500.00 2005 0.00
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(Tr. at 53).
On November 3, 2003 — ten days before her back surgery, plaintiff protectively filed an application for supplemental security income alleging that she would become disabled as of November 12, 2003. Plaintiff's protective filing worksheet lists a phone appointment on December 1, 2003. The remarks are as follows: (emphasis in the original) (Tr. at 405).
On November 12, 2003, plaintiff underwent an L5-S1 anterior lumbar interbody fusion with insertion of L5-S1 interbody cages1 (Tr. at 174). She began physical therapy in the hospital, was discharged in stable condition on November 14, 2008, and was given a prescription for Lorcet Plus2 as needed for pain.
On December 30, 2003, plaintiff saw Jeffrey Del Vecchio, a physician's assistant, for a follow up (Tr. at 194).
On January 28, 2004, Dr. McQueary completed an Attending Physician's Statement from State Farm Mutual automobile Insurance Company (Tr. at 429-430). He was asked whether in his opinion plaintiff was unable to work at her regular occupation due to her impairment, and he checked "yes". He listed the dates of disability as "11-12-03 to est. 6 months". He was asked how long he expected it to take for plaintiff to be able to return to her normal employment, and he checked "3-6 months". When asked what plaintiff is unable to do, he wrote, "any part of bending, stooping, limited standing, sitting, no twisting, lifting".
On February 10, 2004, plaintiff saw Jeff Del Vecchio, a physician's assistant, for a three-month follow up on her back surgery (Tr. at 257-260). She reported that she has pain in her right leg, left leg and back which she rated a 3 at best...
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