McCollum v. Astrue, Case No. 07-CV-1016-JPS

• Decision Date: 05 October 2012
• Docket Number: Case No. 07-CV-1016-JPS
• Citation: McCollum v. Astrue, Case No. 07-CV-1016-JPS (E.D. Wis. Oct 05, 2012)
• Parties: EDDIE MCCOLLUM, Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security Administration, Defendant.
• Court: U.S. District Court — Eastern District of Wisconsin

EDDIE MCCOLLUM, Plaintiff,

v. MICHAEL J. ASTRUE, Commissioner ofSocial Security Administration, Defendant.

Case No. 07-CV-1016-JPS

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

Dated: October 5, 2012

ORDER

Plaintiff Eddie McCollum appeals a decision of the Appeals Council of the Social Security Administration, dated March 9, 2012, finding that Plaintiff is not under a disability within the meaning of the Social Security Act. (Tr. 9, 11). The Appeals Council's decision was a final decision of the Commissioner of Social Security. (Tr. 9).

An exceptionally protracted procedural history, detailed below, brings the parties and the Court to this juncture. The Court finds that the Commissioner's final decision, as it currently stands, does not provide the Court a sufficient basis to determine whether substantial evidence supports the Commissioner's residual functional capacity ("RFC") finding, credibility determination or finding that Plaintiff's prior employment as a parking lot attendant is past relevant work, and so the Court is obliged to and will remand the case for further proceedings consistent with this opinion.

1. BACKGROUND

The Court will set forth the case background in two separate parts: (1) Plaintiff's background and relevant medical evidence; and (2) the procedural history in this case.

1.1 Plaintiff's Background and Relevant Medical Evidence

Plaintiff was born on May 17, 1954. (Tr. 74). Plaintiff dropped out of high school in the twelfth grade at 18 years of age, but subsequently obtained a GED at the age of 21. (Tr. 464).

Plaintiff's employment history includes work as: (i) a janitor and washroom attendant for a laundry business (December 1979 - August 1987); (ii) a parking lot attendant (December 1988 - February 1990); (iii) a stocker and packer at a hobbyist warehouse (November 1990 - September 1998); and (iv) a machine operator at a plastics manufacturer (September 1999 -September 2002). (Tr. 89).

Living with his mother and brother in a one-family house, Plaintiff does "all the yard work" including cutting grass, raking it up, shoveling snow, and throwing down salt. (Tr. 461). He also trims the bushes with a power saw. (Tr. 461). When Plaintiff does these tasks, he works for about an hour and then takes a break for about 15 or 20 minutes. (Tr. 478). Periodically, Plaintiff removes "garbage" (including "raggedy and broken" chairs) from the basement in the house. (Tr. 479-480).

With the $200.00 worth of food stamps per month Plaintiff receives, Plaintiff shops for groceries. (Tr. 462, 468). Plaintiff smokes "a half a pack a day" notwithstanding his asthma. (Tr. 469).

Even in snow, sleet and rain, Plaintiff generally goes for a walk each morning, using his cane as an assistive device, to "loosen up [his] legs and loosen up [his] knees." (Tr. 466, 477). In 2008, in the course of taking a morning walk around 6:00 am, Plaintiff was shot in the back and in the left shoulder by robbers wielding a shotgun. (Tr. 466-467). Following trauma surgery services, Plaintiff embarked on a course of physical therapy toincrease strength in his left arm and range of motion in his left shoulder. (See Tr. 395-410). The physical therapy discharge note, dated December 11, 2008, indicated that "strength tested as 4+/5 throughout major muscle groups in shoulder/scapular group" and that Plaintiff "is highly motivated and compliant" with his home exercise program. (Tr. 410). However, in December 2010, Dr. Reginald Adams' physical examination of Plaintiff indicated that Plaintiff's maximum ability to lift and carry with his left arm on an occasional basis (no more than 1/3 of an eight-hour day) and on a frequent basis (1/3 to 2/3 of an eight-hour day) is, in both cases, less than 10 lbs. (Tr. 449).

In the course of treatment by Dr. Christopher Withers in 2004 for various symptoms and pain, Plaintiff was diagnosed with flat feet with heavy calluses, osteoarthritis of bilateral knees and allergies. (Tr. 124, 126). Referred by the Social Security Administration for a consultative examination ostensibly because of limited treatment records, Plaintiff was seen by Dr. Kenneth Schaufelberger on May 4, 2005, to address primarily Plaintiff's complaints of bilateral knee pain for the prior six years. (See Tr. 139-141). Dr. Schaufelberger's physical examination of Plaintiff's lower extremities revealed no abnormalities, though on x-ray "AP and lateral views of the bilateral knees reveal[ed] moderate tricompartmental joint space narrowing without osteophyte or cyst formation," and Dr. Schaufelberger concluded that Plaintiff's knee pain was "not classic in its presentation for osteoarthritis" and recommended Plaintiff be evaluated for possible rheumatological arthritis. (Tr. 140-141). In addition, Dr. Schaufelberger recommended various work limitations for Plaintiff relating to squatting,kneeling, repetitive use of stairs or a ladder, seated tasks, and duration of walking. (Tr. 141).

Then, in a January 2006 follow-up visit to Dr. Withers, Plaintiff was again found to have osteoarthritis of the bilateral knees. (Tr. 173). Dr. Withers' assessment at that time was that Plaintiff required a walking cane. (Tr. 174).

In response to Plaintiff's complaints in late 2007 and early 2008 of urinary issues including "urgency," "hesitancy," "dribbling in-between," "sensation of incomplete emptying," and "frequent nocturia," Dr. John Krueger made assessments of "microscopic hermaturia," "urinary frequency" and "possible urinary obstructive symptoms." (Tr. 325, 366). Dr. Krueger noted that, as of February 2008, Plaintiff had not changed his habit of drinking large amounts of water and at least four cups of coffee per day. (Tr. 366).

1.2 Procedural History

Plaintiff applied for Supplemental Security Income ("SSI") and Disability Insurance Benefits on January 28, 2005, alleging that his disability began on May 10, 2003, and complaining of various impairments including osteoarthritis, asthma, allergies, fallen arches, tendonitis, arthritis, gum disease, dehydration, and frequent urination. (Tr. 69-73, 88). Plaintiff's application was denied initially, as well as on reconsideration and by Administrative Law Judge ("ALJ") Linda Halperin. (Tr. 40-44, 47-50, 60-66). Following those denials, Plaintiff appealed to this Court on November 15, 2007. (Tr. 213).

The Commissioner motioned the Court to remand the case because of a procedural error: ALJ Halperin had denied Plaintiff's application without designating individual exhibits in the file. (Tr. 184-87).

This Court granted the Commissioner's unopposed motion on January 31, 2008, and remanded the case to the Social Security Agency for further administrative action pursuant to the sixth sentence of 42 U.S.C. § 405(g). (Tr. 213). On May 21, 2010 - nearly two and one-half years after the Court remanded the case to the agency - the Appeals Council remanded Plaintiff's case to an ALJ with instructions to issue a new decision and, in so doing, vacated the final decision of the Commissioner (and, therefore, ALJ Halperin's decision). (Tr. 180-83).

Meanwhile, Plaintiff had filed another application for SSI in the spring of 2007 (Tr. 440-42), which was also denied both initially and on reconsideration (Tr. 443-46). ALJ Timothy Malloy consolidated the remanded case with Plaintiff's spring 2007 SSI application and held a de novo hearing on November 30, 2010. (Tr. 456-502). Plaintiff (represented by counsel) and a vocational expert each testified. (See Tr. 454-502).

Approximately two months later, on January 24, 2011, ALJ Malloy's decision issued: Plaintiff was found not disabled because he could perform his past relevant work as a plastics molding machine operator despite his impairments. (Tr. 25-25A).

Plaintiff subsequently filed exceptions and the Appeals Council assumed jurisdiction on October 21, 2011. (Tr. 28). The Appeals Council stated in its notice that it planned to consider the opinion evidence dated December 14, 2010, from Dr. Adams. (Tr. 28). Plaintiff then submitted a two-page letter to the Appeals Council on November 25, 2011. (Tr. 26-27).

On March 9, 2012, the Appeals Council issued a decision generally adopting the findings of ALJ Malloy. (Tr. 11-13). The Appeals Council's decision assessed Dr. Adams' opinions and did not afford those opinions significant weight. (Tr. 12). The Appeals Council found Plaintiff not disabled because Plaintiff retained residual functional capacity ("RFC") for a full range of light work and, in consequence, could perform his past work as a plastics molding machine operator. (Tr. 12-13).

Plaintiff appeals the Appeals Council's decision - a final decision of the Commissioner of Social Security - to this Court for review. (Tr. 9).

2. STANDARD OF REVIEW

The Commissioner's factual determinations are entitled to deference if they are supported by substantial evidence. 42 U.S.C. § 405(g); Craft v. Astrue, 539 F.3d 668, 673 (7th Cir.2008). "Substantial evidence" exists so long as there is "more than a scintilla" of evidence, such that "a reasonable mind might accept [it] as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971); Young v. Barnhart 362 F.3d 995, 1001 (7th Cir 2004).

The Court cannot "decide the facts anew, re-weigh the evidence or substitute its own judgment for that of the Commissioner to decide whether a claimant is or is not disabled." Powers v. Apfel, 207 F.3d 431, 434-35 (7th Cir. 2000) (citing Perales, 402 U.S., at 399-40, Butera v. Apfel, 173 F.3d 1049, 1055 (7th Cir. 1999)). Rather, "[w]here conflicting evidence allows reasonable minds to differ as to whether a claimant is entitled to benefits, the responsibility for that decision falls on the Commissioner" Binion on Behalf of Binion v. Chater, 108 F.3d 780, 782 (7th Cir. 1997).

"[R]egardless whether there is enough evidence in the record to support the ALJ's decision, principles of administrative law require the ALJto rationally articulate the grounds for [its] decision and...