Robinson v. Astrue, CIVIL ACTION No. 10-4115-KHV

• Decision Date: 28 October 2011
• Docket Number: CIVIL ACTION No. 10-4115-KHV
• Parties: SHIRLEY J. ROBINSON, Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant.
• Court: U.S. District Court — District of Kansas

SHIRLEY J. ROBINSON, Plaintiff,

v.MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant.

CIVIL ACTION No. 10-4115-KHV

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

Dated: October 28, 2011

MEMORANDUM AND ORDER

Shirley J. Robinson appeals the final decision of the Commissioner of Social Security to deny disability benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401 et seq. For the reasons set forth below, the Court reverses the Commissioner's final decision and remands the case for further proceedings consistent with this order.

Procedural Background

On May 17, 1999, plaintiff filed an application for Social Security Disability Income with the Social Security Administration ("SSA") asserting disability due to chronic asthma. Certification Of Transcript Of Proceedings Before The Social Security Administration (Doc. # 10), Ex. 1, filed December 30, 2010 ("Tr.") at 100. On August 27, 1999, the Commissioner found plaintiff disabled as of October 1, 1998. Id. at 29, 38, 41-42. On March 21, 2003, the Commissioner notified plaintiff that a Continuing Disability Review determined that she was no longer disabled as of March 1, 2003. Id. at 29, 52-53. On October 31, 2003, a Disability Hearing Officer upheld the decision. Id. at 51-66. On February 24, 2006, Administrative Law Judge ("ALJ") Marsha Stroup agreed. Id. at 29-37. On March 8, 2007, the SSA Appeals Council denied plaintiff's request for review. Id. at 10-12.

On May 9, 2007, plaintiff filed a civil action in this Court challenging the Commissioner's final cessation of benefits decision. See Robinson v. Astrue, No. 07-2196-JWL (D. Kan.). On May 21, 2008, U.S. District Judge John W. Lungstrum adopted the Report And Recommendation of U.S. Magistrate Judge John T. Reid reversing the ALJ decision and remanding based on the erroneous ALJ analysis of plaintiff's residual functional capacity ("RFC"). Order (Doc. #13 in 07-2196); Judgment In A Civil Case (Doc. #14 in 07-2196).

On remand, the Appeals Council vacated the Commissioner's final decision and sent the case back to an ALJ for further proceedings. Tr. at 1008. On May 21, 2009, ALJ Christine A. Cooke upheld the cessation of benefits determination, finding that plaintiff's disability ended as of March 1, 2003. Id. at 951-57. Though it modified one aspect of the ALJ decision, the Appeals Council agreed. Id. at 728-31. On September 16, 2010, plaintiff appealed to this Court from the Appeals Council's decision, which stands as the Commissioner's final decision.

Facts

The following is a brief summary of the evidence presented to the ALJ.

Plaintiff is 55 years old. She graduated from high school and earned an associate's degree in science from Donnelly College. Plaintiff started nursing school but dropped out due to her medical condition. Plaintiff previously worked as a certified nurse's aide and as a recovery teacher.

The ALJ held hearings on December 23, 2008 and March 24, 2009 at which plaintiff was represented by counsel. At the hearings, the ALJ heard testimony from plaintiff; plaintiff's lawyer at the time, Kenneth Chambers; vocational experts Marianne Lumpe and Denise Waddell; and medical expert Dr. Stephen Nathan.

In a decision dated May 21, 2009, the ALJ concluded as follows:

1. The most recent favorable medical decision finding that claimant was disabled is the determination dated August 27, 1999. This is known as the "comparison point decision" or CPD.

2. At the time of the CPD, claimant had the following medically determinable impairment: Asthma. This impairment was found to meet Section 3.03B of 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR § 404.1520(d)).

3. Claimant did engage in substantial gainful activity prior to the initial cessation of benefits. Claimant's earnings record in Exhibit 70, Page 6, shows reported earnings of $11,400.50 in 2001 while claimant worked for the Unified School District No. 500.

4. The medical evidence establishes that claimant did not develop any additional impairment after the CPD through March 1, 2003. Thus, claimant continued to have the same impairment that she had at the time of the CPD.

5. Medical improvement occurred as of March 1, 2003 (20 CFR § 404.1594(b)(l)).

6. The medical improvement is related to the ability to work because, as of March 1, 2003, claimant no longer had an impairment or combination of impairments that met or medically equaled the same listing that was met at the time of the CPD (20 CFR § 404.1594(c)(3)(1)).

7. As of March 1, 2003, claimant's impairment was severe (20 CFR § 404.1594(t)(6)).

8. After careful consideration of the entire record, the undersigned finds that, as of March 1, 2003, claimant had the residual functional capacity to lift or carry a maximum of 20 pounds on an occasional basis and 10 pounds frequently. She could sit, stand, or walk for 6 of 8 hours. She could occasionally climb stairs or ramps and could occasional [sic] balance. She could never climb ladders, ropes, scaffolds, kneel, crouch, or crawl. Claimant could never work in extremes of cold or heat; around wetness; humidity; fumes; odors, dust and other airborne irritants; or around hazards, such as dangerous machinery or unprotected heights. She could occasionally climb stairs, ramps and balance.

9. Beginning on March 1, 2003, claimant has been capable of performing past relevant work as a teaching assistant as that job is generally performed. This work has not required the performance of work-related activities precluded by claimant's residual functional capacity (20 CFR § 404.1565).

10. Claimant's disability ended as of March 1, 2003 (20 CFR § 404.1594(t)(7)).

Tr. at 953-57.

In reaching her decision, the ALJ held that plaintiff's congestive heart failure, obesity, degenerative joint disease and gastroesophageal reflux disease ("GERD") did not result in any significant functional limitations and did not constitute severe impairments. Id. at 954. The ALJ relied on the testimony of Dr. Nathan, a pulmonologist who reviewed plaintiff's medical records, to conclude that plaintiff's asthma was under good control. Id. at 955. To determine plaintiff's RFC, the ALJ relied on the RFC assessment of Dr. Kim, a reviewing physician. Id. at 956. Dr. Kim's RFC assessment stated that plaintiff could occasionally lift and/or carry 20 pounds; frequently lift and/or carry 10 pounds; sit, stand and/or walk (with normal breaks) for about six hours in an eight-hour workday; and push and/or pull without restriction, except for the limitations on lifting and/or carrying. Id. at 439.

The ALJ rejected the RFC assessment by plaintiff's treating physician, Dr. Jasper Fullard, because the assessment was dated December 10, 2008, roughly five years after the Commissioner's cessation determination, and because the assessment states that Dr. Fullard first treated plaintiff in January of 2004, nearly one year after the cessation determination. Id. Dr. Fullard's RFC assessment was based on his personal knowledge of plaintiff's medical history. Id. at 1048. It concluded that plaintiff's ability to deal with work related stress was markedly limited; that she could sit upright in a work position for 15 minutes before having to walk or stand in place; that plaintiff could sit for a total of two hours during an eight hour workday; that she needed to rest by laying down or reclining at intervals of less than one hour because of leg pain, shortness of breath and GERD; that she could not balance when standing without assistance, stoop by bending forward at the waist or use her hands for repetitive reaching or grasping. Id. at 1049. Dr. Fullard's RFC assessment also stated that plaintiffconstantly needed to use a cane or walker for walking or standing, would need to miss work more than three times a month for medical treatment and would frequently have to take medical treatments at work that require a recovery time of one hour. Id. at 1049-50.

The Appeals Council adopted the ALJ findings with respect to the issues relating to substantial gainful activity, severity, medical improvement, RFC and credibility through the cessation date of March 1, 2003. Id. at 729-30. The Appeals Council rejected the ALJ finding that plaintiff had past relevant work experience as a teacher's assistant because plaintiff performed such work after the Commissioner found that plaintiff was disabled. Id. at 730.¹ The Appeals Council concluded that plaintiff could not perform her past relevant work because of her impairments, but that she could perform work at the light exertional level such as price marker and office helper. Id.

The Appeals Council found as follows:

1. The claimant met the special earnings requirements of the Act through March 1, 2003, the date disability ceased.

The claimant has engaged in substantial gainful activity prior to March 1, 2003. Specifically, the claimant returned to work in 2001 and earned $11,400.50 as a teacher's assistant. However, the record does not show the claimant continued to work beyond 2001 and there is insufficient information to ascertain whether an earlier cessation date can be made based on this work activity (20 CFR 404.1 594(g)(3). Thus, the Appeals Council continues beyond this step in the sequential evaluation process as did the Administrative Law Judge.

2. The claimant has the following severe impairment: asthma, but does not have an impairment or combination of impairments which is listed in, or which is medically equal to an impairment listed in 20 CFR Part 404, Subpart P, Appendix 1.

3. Medical improvement occurred as of March 1, 2003 [20 CFR 404.1 594(b) (1)].

4. The claimant's impairment results in the following limitations on her ability to perform work-related activities: lifting/carrying 10 pounds frequently and 20 pounds occasionally; sitting, standing or walking 6 of 8 hours; occasionally climb stairs or ramps and balance; no climbing ladders, ropes, scaffolds, kneeling crouching or crawling; and no work in extremes of cold or heat, or around wetness,

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