Stewart v. Astrue

• Decision Date: 10 April 2008
• Docket Number: No. 5:07cv175-SPM/WCS.,5:07cv175-SPM/WCS.
• Citation: 551 F.Supp.2d 1308
• Parties: Thomas J. STEWART, Plaintiff, v. Michael J. ASTRUE, Commissioner of Social Security, Defendant.
• Court: U.S. District Court — Northern District of Florida

551 F.Supp.2d 1308

Thomas J. STEWART, Plaintiff, v. Michael J. ASTRUE, Commissioner of Social Security, Defendant.

No. 5:07cv175-SPM/WCS.

United States District Court, N.D. Florida, Panama City Division.

April 10, 2008.

COPYRIGHT MATERIAL OMITTED

Quinn Eric Brock, Brock & Stout LLC — Enterprise AL, Enterprise, AL, for Plaintiff.

Roy F. Blondeau, Jr., US Attorney — Tallahassee FL, Tallahassee, Fl, for Defendant.

ORDER

STEPHAN P. MICKLE, District Judge.

THIS CAUSE comes for consideration upon the magistrate judge's report and recommendation dated February 19, 2008 (doc. 19). Each party has been furnished a copy and has been afforded' an opportunity to file objections pursuant to Title 28, United States Code, Section 636(b)(1). No objections have been filed. Having considered the report and recommendation, I have determined that the report and recommendation should be adopted.

Accordingly, it is hereby ORDERED as follows:

1. The magistrate judge's report and recommendation (doc. 19) is adopted and incorporated by reference in this order.

2. The decision of the Commissioner to deny Plaintiffs application for Social Security benefits is reversed and the Commissioner is ordered to grant Plaintiffs application for supplemental security income benefits.

DONE AND ORDERED.

REPORT AND RECOMMENDATION

WILLIAM C. SHERRILL, JR., United States Magistrate Judge.

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 reversed and Plaintiffs application be granted.

Procedural status of the case

Plaintiff, Thomas J. Stewart, applied for supplemental security income benefits. Plaintiff was 47 years old at the time of the administrative hearing. The Administrative Law Judge found that Plaintiff has the equivalent of only a 3rd grade education, is functionally illiterate, and has no past relevant work. Plaintiff alleges disability due to lower back pain. The Administrative Law Judge found that Plaintiff had the residual functional capacity to do a limited range of medium work. Relying upon a vocational expert, the ALJ found that Plaintiff could perform work as an industrial cleaner, kitchen helper, bus person, cafeteria attendant, and linen supply load builder, and thus was not disabled as defined by Social Security law.

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). "Substantial evidence is more than a scintilla, but less than a preponderance. It is such relevant evidence as a reasonable person would accept as adequate to support a conclusion." Bloodsivorth 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). The court must give "substantial deference to the Commissioner's decision." Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005). "A `substantial evidence' standard, however, does not permit a court to uphold the Secretary's decision by referring only to those parts of the record which support the ALJ. A reviewing court must view the entire record and take account of evidence in the record which detracts from the evidence relied on by the ALJ." Tieniber v. Heckler, 720 F.2d 1251, 1253 (11th Cir. 1983). "Unless the Secretary has analyzed all evidence and has sufficiently explained the weight he has given to obviously probative exhibits, to say that his decision is supported by substantial evidence approaches an abdication of the court's `duty to scrutinize the record as a whole to determine whether the conclusions reached are rational.'" Cowart v. Schweiker, 662 F.2d 731, 735 (11th Cir. 1981) (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):

1. Is the individual currently engaged in substantial gainful activity?

2. Does the individual have any severe impairments?

3. Does the individual have any severe impairments that meet or equal those listed in Appendix 1 of 20 C.F.R. Part 404?

4. Does the individual have any impairments which prevent past relevant work?

5. Do the individual's impairments prevent other work?

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 the national 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 that he cannot read or write. R. 268. He has a valid motor vehicle driver's license. Id. He last worked as a mechanic at Lander's Auto Sales in 2004. Id. He was released from that work due to back pain. R. 282. He said his employer gave him work as a stock clerk, but he could not perform adequately because the job required that he be able to read part numbers and stock numbers. Id. Plaintiff admitted that he did not have much of a prior work history, and said it was due to his limited education. R. 268. He had no earnings between 1989 to 1997, and only $1,000 in earnings in 1998 and 2000. R. 269.

Plaintiff testified that he had a steady throbbing pain in his back. R. 270. He had been treated by Dr. Clemmons since 2004, seeing him about every month and receiving pain medications. R. 271-272. He said that the medication does not "kill the pain," however. R. 272. It does help some. R. 273. He said his treating physician had never recommended any physical therapy. R. 281. Plaintiff said he used a heating pad and hot baths for back pain. R. 279. An MRI was performed in April, 2004, and surgery was recommended, but Plaintiff did not have the surgery because he did not "have the means." R. 283.

Plaintiff said that moving and sitting made his back pain worse. R. 274. Sitting for just a few minutes makes the pain worse. Id. He said he could stand only four or five minutes before wobbling and getting dizzy. Id. Plaintiff said he could not lift and carry very much weight. R. 275.

Plaintiff denied doing much in the way of household chores, stating that he does "pick up behind myself." R. 277. He said he spends four or five hours a day watching television. Id. He watches the Discovery channel, sports, movies, and cartoons, and is able to follow programs that interest him. R. 277-278. He is able to fix a sandwich. R. 278. He does not do his own laundry or any yardwork. Id. Plaintiff said he could drive and that he drove to the hearing, a trip of about one and one-half hours each way. R. 278-279.

The ALJ assumed that Plaintiff was functionally illiterate, could do no jobs requiring reading or writing, and could do only unskilled jobs, but had no mental limitations. R. 287-288. He also assumed that Plaintiff could occasionally lift and carry up to 50 pounds for one-third of the work day, and 25 pounds or less frequently, that is, for the remaining two-thirds of a work day.² R. 287. He assumed that Plaintiff had "no impediment to his ability to sit, stand or walk." Id. He assumed that Plaintiff could push and pull no more than 40 pounds. Id. He assumed that Plaintiff could climb occasionally and frequently balance, kneel, crouch, crawl and stoop, and had no limitations on his ability to reach, handle, hold, finger, grasp and manipulate objects within the above weight limits. Id. The vocational expert said that such a person could do work as an industrial cleaner, kitchen helper, cafeteria attendant, or linen supply load builder. R. 288-290.

Medical Evidence

The medical record in this case begins on March 25, 2004, with a visit to James A. Clemmons, M.D. R. 188. Plaintiff was to see Dr. Clemmons on `multiple occasions after this first visit, primarily to obtain pain medication. Dr. Clemmons noted that Plaintiff had LBP (low back pain) and "nerves." Id. Diazepam³ and hydrocodone⁴ were prescribed. Id. X-ray images of Plaintiffs lower back on April 4, 2004, revealed disc space narrowing at L5-S1 "associated with sclerosis, hypertrophic changes, and vacuum disc formation." R. 190. The opinion was "[s]evere and chronic disc...