Rease v. Barnhart, No. 1:04-CV-3239-JMF.

• Decision Date: 12 April 2006
• Docket Number: No. 1:04-CV-3239-JMF.
• Citation: 422 F.Supp.2d 1334
• Parties: Edward Lorenzo REASE, Plaintiff, v. Joanne B. BARNHART, Commissioner of Social Security, Defendant.
• Court: U.S. District Court — Northern District of Georgia

422 F.Supp.2d 1334

Edward Lorenzo REASE, Plaintiff, v. Joanne B. BARNHART, Commissioner of Social Security, Defendant.

No. 1:04-CV-3239-JMF.

United States District Court, N.D. Georgia, Atlanta Division.

April 12, 2006.

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Edward Lorenzo Rease, Marietta, GA, pro se.

Robert David Powell, Office of United States Attorney, Northern District of Georgia, Atlanta, GA, for Defendant.

MAGISTRATE JUDGE'S FINAL ORDER

FELDMAN, United States Magistrate Judge.

This is a pro se action to review the determination by the Commissioner of Social Security ("the Commissioner") that Edward Lorenzo Rease is not entitled to a period of disability, or disability insurance benefits ("DIB") under §§ 216(i) and 223(a), and 1614(a)(3)(A) of the Social Security Act, 42 U.S.C. §§ 416(i) and 423(a), and 1382.

PART ONE HISTORY OF THE CASE

On May 5, 1999 the claimant filed the instant application for a period of disability and DIB and/or SSI. In the combined application for DIB, the claimant alleged that he had been disabled since August 6, 1998 due to mental and physical health problems, including depression, panic attacks, and spinal injuries. Tr. 87-89, 101. The application was denied initially on July 8, 1999 and on reconsideration on October 20, 1999. Tr. 16, 17; 18-21; 24-27. On October 26, 2000, Administrative Law Judge (ALJ) Kelly Jennings held a de novo hearing and received testimony from the claimant and Mr. Earl Thompson, a vocational expert (VE). Tr. 673-705. On November 24, 2000, the ALJ rendered a decision adverse to the claimant. Tr. 34-39.

The claimant appealed that adverse decision to the Appeals Council (AC), which, on June 18, 2002, granted review and remanded the case to the ALJ with directions to (a) address the claimant's 1999 earnings and whether he had performed work at the substantial gainful activity (SGA) level since his alleged date of disability onset; (b) properly evaluate the claimant's credibility; (c) obtain updated medical information from any treating sources, and then provide the rationale for the weight he assigned to each medical opinion and assessment of record, (d) discuss the rationale for his conclusions regarding the claimant's specific limitations and residual functional capacity, (e) consider obtaining one or more comprehensive mental status consultative examinations, and (e) conduct a new de novo hearing and obtain supplemental evidence from a VE to clarify the effect of the claimant's limitations on his ability to do his past relevant work or other work existing in significant numbers in the regional or national economies. Tr. 84-86.

On April 23, 2003, the ALJ conducted a new de novo hearing at which he received new medical records from the claimant; and also received testimony from the claimant, Dr. Suzanne Cullins, M.D. (a medical expert), Dr. Neal Lewis, Ph.D. (a psychologist), and Dr. Laura Sewell, Ph.D., a VE. Tr. 706-47. On October 30, 2003, the ALJ rendered another adverse decision. Tr. 515-522. On August 25, 2004, the Appeals Council declined to review the ALJ's decision (Tr. 6-9), thereby making the ALJ's new adverse decision the final decision of the Commissioner.¹ Thereafter, the claimant appealed the decision to the District Court. This case is now ripe for review under § 205(g) of the Social Security Act, 42 U.S.C. § 405(g).

PART TWO THE ISSUES

1. Whether the Commissioner's decision that the claimant can perform substantial gainful activity (SGA) is supported by substantial evidence;

2. Whether the ALJ denied the claimant a full and fair hearing—

a. whether the ALJ properly evaluated the claimant's subjective testimony;

b. whether the ALJ properly considered the claimant's impairments in combination;

c. whether the ALJ was correct in not using the Medical Vocational Guidelines to determine whether the claimant was disabled.

d. whether the ALJ properly considered the opinion of the claimant's treating physician, Dr. Steven Marrinson;

e. whether the ALJ properly fulfilled his duty to develop a full and fair record

f. whether the ALJ's hypothetical questions to the VE included all undisputed evidence of the claimant's impairments. And

3. Whether this Court should remand the case to the Commissioner pursuant to Sentence 4 of 42 U.S.C. § 405(g).

PART THREE THE STANDARD FOR REVIEW

The claimant bears the initial burden of proving that he is disabled, which burden is met when he proves that he suffers from a terminal impairment or a severe impairment that is expected to last at least twelve months and renders him unable to pursue his customary employment. Thereafter, the burden shifts to the Commissioner to prove that the claimant can, nevertheless, perform other types of substantial gainful activity. Freeman v. Schweiker, 681 F.2d 727 (11th Cir.1982). In determining whether a claimant is disabled within the meaning of the Social Security Act, the Commissioner is required to consider:

(1) Objective medical facts or clinical findings;

(2) Diagnosis of examining physicians;

(3) Subjective evidence of pain and disability as testified to by the claimant and corroborated by his wife or other members of his family, his neighbors and others who have observed him; and

(4) The claimant's age, education and work history .. . .

DePaepe v. Richardson, 464 F.2d 92, 94 (5th Cir.1972); Bloodsworth v. Heckler, 703 F.2d 1233 (11th Cir.1983).

The Commissioner, in reaching his determination, must also follow a five step sequential evaluation process. 20 C.F.R. §§ 404.1520 (1986). First, the Commissioner must look at whether the claimant is working. A claimant presently engaged in substantial gainful activity ("SGA"²) is declared not disabled and the inquiry ceases. 20 C.F.R. §§ 404.1520(b) (1986).

If the claimant is not engaged in substantial gainful activity, the Commissioner must determine whether he suffers from a severe mental or physical impairment.³ If the impairment is not severe, the claimant is declared not disabled. 20 C.F.R. § 404.1520(c). If his impairment is severe, it meets the durational requirements, and it equals or exceeds a "listed" impairment, the claimant is considered disabled. 20 C.F.R. § 404.1520(d)(1986).

If the claimant's severe impairment does not equal or exceed a listed impairment, the Commissioner must then determine the claimant's residual functional capacity (i.e., the degree to which the claimant can function, despite all of his physical or mental impairment(s)). In addition to considering all of the claimant's impairments, the Commissioner must also evaluate the physical and mental demands of the claimant's past relevant work, and whether the claimant can meet those demands, given his residual functional capacity. 20 C.F.R. § 404.1520(e)(1986); Perez v. Schweiker, 653 F.2d 997 (5th Cir.1981).

If the claimant cannot perform his past relevant work, then the Commissioner must decide whether the claimant's impairment(s) prevent him from doing any other SGA. 20 C.F.R. § 404.1520(g). In the event the impairment(s) preclude other SGA, a finding of disability is mandated.

It must also be recognized that hearings before the Commissioner (nee the ALJ and the AC) are non-adversarial in nature, and oblige the adjudicator (AC and ALJ) to ensure that the hearing record is complete. Specifically, it is the adjudicator's duty to investigate the facts and develop the arguments, both for and against granting benefits. Sims v. Apfel, 530 U.S. 103, 120 S.Ct. 2080, 147 L.Ed.2d 80, 88 (2000); Wilson v. Apfel, 179 F.3d 1276, 1278 (11th Cir.1999); Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir.1997) Welch v. Bowen, 854 F.2d 436 (11th Cir.1988); Cowart v. Schweiker, 662 F.2d 731, 735 (11th Cir.1981). Furthermore, the ALJ must comply with this obligation even if the claimant is represented by counsel. This Court's review of the case is generally limited to a consideration of the evidence in the certified record.⁴ Wilson v. Apfel, 179 F.3d at 1279.

The duty of this Court is not to decide facts anew, re-weigh the evidence, or substitute its judgment for that of the agency, but rather to determine if the agency's conclusion, as a whole, was supported by substantial evidence in the record, and whether the Commissioner applied the correct legal standards. Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005); Phillips v. Barnhart, 357 F.3d 1232, 1240, n. 8 (11th Cir.2004); Foote v. Chater, 67 F.3d 1553, 1558 (11th Cir.1995)(citing 42 U.S.C. § 405(g)); Smith v. Bowen, 792 F.2d 1547, 1549 (11th Cir.1986).

Substantial evidence has been defined as "more than a scintilla, but less than a preponderance." Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir.1987); Walden v. Schweiker, 672 F.2d 835, 838 (11th Cir.1982). The evidence must be such that "a reasonable mind might accept it as adequate to support the [Commissioner's] conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971); Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir.1990).

In considering the evidence in the record, this Court must consider the record as a whole. It may not affirm the Commissioner's decision by referring only to those parts of the record which support the same conclusion. Tieniber v. Heckler, 720 F.2d 1251, 1253 (11th Cir.1983). "The substantiality of evidence must take into account whatever in the record fairly detracts from its weight." Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456, 467 (1951) (Frankfurter, J.). However, if the Commissioner's decision is supported by substantial evidence, this Court must affirm, even if the evidence preponderates against the Commissioner's decision. Dyer v. Barnhart, supra; Crawford v. Commissioner of Social Security, 363 F.3d 1155, 1158 (11th Cir.2004); Ellison v. Barnhart, 355 F.3d 1272, 1275 (11th Cir.2003).

PART FOUR EVALUATION OF THE EVIDENCE

A. THE OBJECTIVE MEDICAL EVIDENCE

The...