Mitchell v. Comm'r Of Soc. Sec.
| Decision Date | 18 January 2011 |
| Docket Number | Case No. 6:09-cv-1788-Orl-GJK |
| Parties | KEVIN S. MITCHELL, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant. |
| Court | U.S. District Court — Middle District of Florida |
Kevin S. Mitchell (the "Claimant"), appeals to the District Court from a final decision of the Commissioner of Social Security (the "Commissioner") denying his application for benefits. Doc. No. 1. Claimant argues that the final decision of the Commissioner should be reversed because: 1) the Administrative Law Judge's (the "ALJ") residual functional capacity (the "RFC") determination is incomplete and not supported by substantial evidence; 2) the ALJ erred by failing to properly apply the pain standard and SSR 96-7p in weighing the Claimant's credibility. Doc. No. 18. The Commissioner's decision is REVERSED and REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) because the ALJ's RFC determination does not comply with the requirements of Social Security Ruling 96-8p and 20 CFR § 404.1545(b).
Claimant was born on November 11, 1955. R. 75. Claimant received a general education diploma ("GED") and also received vocational training in welding. R. 26, 159.
Claimant's past employment experience includes working as a machine operator, mold cleaner, welder, fabricator, and tree trimmer. R. 138-51, 181-83. On June 27, 2006, Claimant filed an application for benefits alleging an onset of disability as of September 3, 2005. R. 123-29. Claimant alleges disability due to: multi-level lumbar degenerative disk disease and facet joint disease from L1 to S1 with broad-based disk bulge and spondylolisthesis with slippage at L5-S1; depression; and personality disorder. R. 208. Claimant also alleges that he is disabled due to chronic pain. R. 153, 156-57, 170, 172-73, 189, 209.
Claimant received intermittent chiropractic care for low back pain and muscle spasms in the late 1990's. R. 232-43. From December 11, 2002 through March 12, 2004, Claimant received further chiropractic care and a series of "Standing Full Spine Static EMGs" which "quantified the levels of muscle tension about the spine." R. 217-28. On August 5, 2006, an x-ray ordered by Claimant's chiropractor revealed "disc thinning and disease evident at the L5/S1, " osteoarthritis at the L5 and L2/L3, and positive sciatic nerve compression. R. 231. An MRI was recommended. R. 231.
On September 8, 2005, Claimant presented to Dr. H.G. Royal, M.D., complaining of low back pain, numbness in "buttocks" while sitting, and pain when standing up. R. 247. Dr. Royal diagnosed Claimant with chronic lower back pain, ordered an x-ray, and referred Claimant to another physician. R. 247. The x-ray revealed R. 250. Dr. Goltra, Jr., the physician interpreting the x-ray, opined that that Claimant suffers from R. 250.
On September 15, 2005, on referral from Dr. Royal, Claimant presented to Dr. Ty W. Carter. R. 254. Dr. Carter's treatment notes state:
This is a 49-year-old... male who had a long history of low back problems. The patient says that he has been treated off and on in the past by medical doctors as well as Chiropractor. The patient was a welder for many years. He says that tended to cause his back pain. Over the last several months, the patient has been working doing some lifting. The patient says that on 8/3/05, he was doing some lifting on the job and felt an episode of back pain. He says it has been fairly constant since then. He saw Dr. Royal and had x-rays performed as well as given some anti-inflammatory medicines and muscle relaxers. The patient says that he has been unable to work for the last 2 weeks due to the amount of pain he is having. He says it is mostly muscle related. The patient basically states he has a history of chronic low back pain and he has had some left lateral foot pain. He says when he had the acute episode of muscle spasms a couple of weeks ago, his foot pain got better and now that he is up mobilizing better, his foot pain is back. The patient says that he has been recommended to do physical therapy but hasn't tried it yet. The patient says with any activity, especially twisting and bending, causes pain; it does not wake him up at night. He does have stiffness in the morning.
R. 254. Physical examination showed "some tenderness in the midline and paraspinal areas around L4-5 and L5-S1, " negative straight leg raises, 5/5 strength throughout lower extremities, intact sensation, 2+ deep tendon reflexes, no clonus or Babinski, and no muscle atrophy or skin changes. R. 254. Dr. Carter diagnosed Claimant with lumbar degenerative disk disease with super imposed lumbar strain with left leg radiculopathy. R. 254. Dr. Carter recommended an MRI and epidural steroid injections. R. 254.
On September 27, 2005, Claimant returned to Dr. Cater for a follow-up appointment. R. 255. The MRI showed "several degenerative disk levels; mainly from L1 to S1." R. 255. "Theworst level is L5-S1 where he has grade 1 spondylolisthesis with a 3mm slippage." R. 255. The MRI also showed a "broad based disk bulge to the left at L5-S1 that could be contributing to his left leg radiculopathy." R. 255. Claimant reported that he was feeling "slightly better" with the use of Flexeril and other medications. R. 255. Dr. Carter recommended that Claimant engage in physical therapy or epidural injections. R. 255. Claimant stated that he was probably going to apply for disability benefits, but Dr. Carter opined that Claimant could work. R. 255.
On October 18, 2005, Claimant presented to Dr. David D. Goltra, Jr. R. 256. Dr. Goltra reviewed Claimant's MRI results and offered to treat Claimant with epidural steroid injections and possibly selective nerve root blocks. R. 256. Claimant reported that he was not currently experiencing any pain and that he did not want to begin any treatment. R. 256.
On August 14, 2006, Claimant presented to Dr. Susan J. Tankersley for a consultative examination. R. 258-61. Claimant reported that his low back pain became intolerable by September of 2005, causing him to quit working. R. 258. Claimant stated that "[h]is pain can be elicited by prolonged sitting, standing, lifting, or bending, or if he moves the wrong way or sneezes." R. 258. Claimant admitted that he declined epidural steroid injections with Dr. Goltra because, at the time, he was not hurting. R. 259. R. 259. Physical examination revealed normal strength and range of motion in the upper and lower extremities. R. 260. Claimant displayed decreased range of motion in the lumbar spine, but straight leg testing was negative both while sitting and supine. R. 260. Dr. Tankersley's impressions were: history of degenerative joint disease; degenerative disc disease of the lumbar spine; chronic intermittent lower back pain; no current evidence of radiculopathy; and hard of hearing in the left ear. R. 261. Dr. Tankersley offered no opinion as to Claimant's functional limitations or his ability to work.
On January 31, 2007, Claimant presented to Dr. John B. Bradley, Ph.D., for a consultative mental status examination. R. 283-285. Dr. Brabley noted that Claimant reported suicidal ideation without intention and his attention and concentration skills were below normal. R. 285. Claimant's judgment was fair, but his insight was limited. R. 285. Claimant reported that he was depressed due to his back condition and his inability to obtain treatment due to a lack of financial resources. R. 285. Dr. Bradley diagnosed Claimant with depression, not otherwise specified, and personality disorder, not otherwise specified with features of borderline personality disorder. R. 285. Dr. Bradley assigned Claimant a GAF score of 65. R. 285.
From February 27, 2008 through November 21, 2008, Claimant continued to receive intermittent chiropractic treatment for his low back pain. R. 327-34. During that time, Claimant continued to be diagnosed with chronic low back pain. R. 327.
On August 30, 2006, Dr. William Lindler, a non-examining state agency consultant, completed a physical RFC assessment based on a review of Claimant's medical records to date. R. 263-270. Dr. Lindler opined that Claimant can lift and/or carry up to 50 pounds occasionally, 25 pounds frequently; stand and/or walk about 6 hours in an 8-hour workday; sit about 6 hours in an 8-hour workday; and push and/or pull without limitation. R. 264. Dr. Lindler based his opinion on Dr. Tankersley's August 14, 2006 consultative examination. See R. 264. Dr. Linder indicated that Claimant can only occasionally climb ladders, ropes, or scaffolds, but Claimant can frequently climb ramps or stairs, balance, stoop, kneel, crouch, and crawl. R. 265. Dr. Lindler concluded that Claimant has no other limitations. R. 266-67. Dr. Lindler opined that the Claimant's symptoms are attributable to a medically determinable impairment. R. 268.
On December 21, 2006, Dr. Ellen Humphries, a non-examining state agency consultant, completed a physical RFC assessment based on a review of Claimant's medical records to date. R. 273-80. Dr. Humphries opined that Claimant can lift and/or carry up to 20 pounds occasionally, 10 pounds frequently; stand and/or walk about 6 hours in an 8-hour workday; sit about 6 hours in an 8-hour workday; and push and/or pull without limitation. R. 274. Dr. Humphries indicated that Claimant can only occasionally climb ladders, ropes, or scaffolds, but Claimant can frequently climb ramps or stairs, balance, stoop, kneel, crouch, and crawl. R. 275. Dr. Humphries concluded that Claimant has no other limitations. R. 276-77...
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