Smithson v. Astrue
| Decision Date | 13 October 2011 |
| Docket Number | Case No. 5:10cv300-RS/WCS |
| Court | U.S. District Court — Northern District of Florida |
| Parties | DOUGLAS E. SMITHSON, Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. |
This is a social security case referred to me for a report and recommendation pursuant to 28 U.S.C. § 636(b) and N.D. Loc. R. 72.2(D). It is recommended that the decision of the Commissioner be affirmed.
Procedural status of the case
Plaintiff, Douglas E. Smithson, applied for disability insurance benefits and supplemental security income benefits. His last date of insured status for disability benefits was March 11, 2011. Plaintiff alleges disability due to plantar fascitis with swelling and pain in his feet, with onset on April 14, 2004. Plaintiff was 42 years ofage on April 14, 2004, has a 12th grade equivalency education, and has past relevant work as an automobile mechanic and as a correctional officer.
Plaintiff had two administrative hearings. The second was the result of a remand by the Appeals Council. In the second opinion under review in this court, the Administrative Law Judge found at step 2 that Plaintiff had a history of residuals of plantar fascitis with plantar fascitis release in August, 2004, and symptoms of left tarsal tunnel syndrome and subsequent left tarsal tunnel release surgery. R. 16. The ALJ found further that Plaintiff had the residual functional capacity to do a limited range of sedentary work, could no longer do his past relevant work, but could do sedentary work as a para-mutual ticket checker, a surveillance system monitor, and as an order clerk, and thus was not disabled.
Legal standards guiding judicial review
This court must determine whether the Commissioner's decision is supported by substantial evidence in the record and premised upon correct legal principles. Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983) (citations omitted); Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005). "The Commissioner's factual findings are conclusive if supported by substantial evidence." Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002). "If the Commissioner's decision is supported by substantial evidence we must affirm, even if the proof preponderates against it." Phillips v. Barnhart, 357 F.3d 1232, 1240, n. 8 (11th Cir. 2004) (citations omitted).
A disability is defined as a physical or mental impairment of such severity that the claimant is not only unable to do past relevant work, "but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy . . . ." 42 U.S.C. § 423(d)(2)(A). A disability is an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months . . . ." 42 U.S.C. § 423(d)(1)(A). Both the "impairment" and the "inability" must be expected to last not less than 12 months. Barnhart v. Walton, 535 U.S. 212, 122 S.Ct. 1265, 1272, 152 L.Ed.2d 330 (2002).
The Commissioner analyzes a claim in five steps. 20 C.F.R. § 404.1520(a)-(f):
A positive finding at step one or a negative finding at step two results in disapproval of the application for benefits. A positive finding at step three results in approval of the application for benefits. At step four, the claimant bears the burden of establishing a severe impairment that precludes the performance of past relevant work. If the claimant carries this burden, the burden shifts to the Commissioner at step five to establish that despite the claimant's impairments, the claimant is able to perform other work in thenational economy. Chester, 792 F.2d at 131; MacGregor v. Bowen, 786 F.2d 1050, 1052 (11th Cir. 1986). If the Commissioner carries this burden, the claimant must prove that he or she cannot perform the work suggested by the Commissioner. Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987).
Evidence from the administrative hearing1
Plaintiff testified at the first administrative, held on March 9, 2007, that on April 14, 2004, while working as a correctional officer, he had to run down a hill behind a dormitory to respond to a prison riot. 630. Later, as he was doing reports, he noticed severe pain in both feet. Id. He went to the doctor the next day and was diagnosed with the impairments he now has. Id. He went back to work, and was transferred to a work camp for a less strenuous position, but he found that he could no longer work as a correctional officer due to pain in his feet. R. 631.
Plaintiff said that after foot surgery, his feet improved initially and then the pain gradually returned. R. 634. During this period, Plaintiff had physical therapy and massage therapy from time to time, and wore a boot, which helped some. R. 633-635. He said that his left foot had always been worse than the right. R. 634. His right foot, he said, was "pretty good," but his left foot "is severely painful." R. 635. Plaintiff saidthat he had had surgery first on his left foot and then on the right, and the surgery had helped on the right. R. 637. Plaintiff said he had last seen Dr. Merritt in February, 2007, and Dr. Merritt "put me on Vicodin[2] and he just told me that he's done the best he can." R. 636. He said that he experienced drowsiness from the Vicodin. R. 650. He said that he did not tell Dr. Merritt that Vicodin caused sleepiness because "going to sleep is an advantage because I don't sleep at night." R. 652.
Plaintiff said that he could walk for less than an hour after the first surgery. R. 635. At the time of the hearing, he said that he thought he could walk only 10 to 20 minutes before having to sit. R. 639. He said that he okuses a cane to walk on the recommendation of Dr. Merritt. R. 647. He said that R. 639.
Plaintiff said he sat most of the day, "probably eight hours a day most of the time." R. 642. He said that he sat with his foot elevated in a recliner. R. 646-647. He uses ice a couple of times a day to reduce swelling. R. 648.
Plaintiff said he no longer has any recreational hobbies and he does not go to church. R. 649. He uses a chair in his shower. R. 651. He sometimes (once or twice a month) shops for groceries with his wife, using a motorized cart. Id.
Plaintiff said he did not have any problems with his back. R. 639. He also did not have any problems with his arms and hands, and he could lift 12 pounds from a seated position. R. 646. He said he could not carry anything because the weight causes too much pain in his left foot. Id. He said he could read and write, do simple math, write a short note, compile a grocery list, and had a valid driver's license, but did not drive much. R. 624-625. He drove with his right foot. R. 643. He said that he could drive 150 yards, to the mail box, or a mile, to his mother-in-law's home. R. 648.
Plaintiff was taking testosterone injections once a month and Vicodin. R. 640-642. He said that Vicodin took the "edge" off the pain. R. 641. He said that without Vicodin, "I'd be in misery." Id.
Medical evidence
Plaintiff was seen by a number of physicians after he began to experience foot pain while working as a correctional officer. on August 25, 2004, he underwent surgical left tarsal tunnel release and left partial plantar fasciectomy by Andrew Borom, M.D. R. 101. Dr. Borom noted that conservative measures had not helped, and an MRI demonstrated substantial "involvement" of the origin of the plantar fascia. Id. Plaintiff underwent massage therapy eight times, from october 15, 2004, to January 13, 2005, with continued complaints of pain and tension in his feet, but the massages helped. R. 123-129.
On October 21, 2004, Plaintiff was seen by George N. Merritt, D.P.M., for a second opinion. R. 420. Plaintiff said that his left foot still bothered him, and his right foot was getting worse. Id. Dr. Merritt noted pain and swelling of Plaintiff's left foot secondary to the surgery, and observed that Plaintiff's gait was antalgic. Id. X-raysrevealed bilateral heel spurs. Id. Dr. Merritt wanted Plaintiff to "get out of the boot on the left foot and try to get back moving and getting into shoes." R. 421.
On January 25, 2005, Dr. Merritt again saw Plaintiff. R. 417. Plaintiff's left foot was still healing from the surgery, with pain, and his right foot was "still an issue." Id. On examination, Dr. Merritt found pain in Plaintiff's right foot. Id. Surgery for the right foot was discussed and scheduled. Id.
On February 1, 2005, Plaintiff underwent surgery (an endoscopic plantar fasciotomy) on his right foot. R. 413-414. By July 25, 2005, Dr. Merritt said that Plaintiff's right foot was almost 100% healed and without pain. R. 402. Plaintiff told Dr. Merritt that his left foot still gave him problems, "especially when he is on it." Id. Dr. Merritt found that Plaintiff's left foot was swollen and tender. Id. Plaintiff said that at times it was more swollen than others, and he had to take the weight off the foot. I...
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