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Kenneth S. v. Commissioner, Social Security Administration

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

August 19, 2019

KENNETH S., Plaintiff,



         Plaintiff in the above-styled case brings this action pursuant to § 205(g) of the Social Security Act, 42 U.S.C. § 405(g), to obtain judicial review of the final decision of the Commissioner of the Social Security Administration which denied his disability applications. For the reasons set forth below, the court ORDERS that the Commissioner's decision be REVERSED and that the case be REMANDED for further proceedings.

         I. Procedural History

         Plaintiff filed applications for supplemental security income and disability insurance benefits on October 11, 2011, alleging that he became disabled on April 30, 2009. [Record (“R.”) at 148-67, 193-94, 322]. After Plaintiff's applications were denied initially and on reconsideration, an administrative hearing was held on September 12, 2013. [R. at 29-65]. At the hearing, Plaintiff amended the alleged onset date to January 1, 2010. [R. at 33-34, 322]. The Administrative Law Judge (“ALJ”) issued a decision denying Plaintiff's applications on November 21, 2013. [R. at 14-23]. After the Appeals Council denied Plaintiff's request for review, Plaintiff sought judicial review of the Commissioner's final decision. On August 1, 2016, the district court reversed the ALJ's decision and remanded the case to the Commissioner for further proceedings. [R. at 1-10, 381-423]. A second administrative hearing was held on February 7, 2018, and Plaintiff's attorney informed the ALJ that the alleged onset date should be amended to March 1, 2012. [R. at 340-61]. The ALJ issued a decision on March 20, 2018, again denying Plaintiff's applications. [R. at 322-33]. Plaintiff filed his complaint in this court on May 21, 2018, seeking judicial review of the Commissioner's final decision. [Doc. 1]. The parties have consented to proceed before the undersigned Magistrate Judge.

         II. Facts

         The ALJ found that Plaintiff has lumbar spine disorder, cervical spine disorder, and fibromyalgia, impairments that are “severe” within the meaning of the Social Security regulations. [R. at 325]. The ALJ determined that Plaintiff does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. [Id.]. Although Plaintiff is unable to perform any of his past relevant work, the ALJ found that there are jobs that exist in significant numbers in the national economy that Plaintiff can perform. [R. at 331-32]. As a result, the ALJ concluded that Plaintiff has not been under a disability since January 1, 2010, through the date of the ALJ's decision. [R. at 332].

         The decision of the ALJ [R. at 322-33] states the relevant facts of this case as modified herein as follows:

         The claimant's allegations as presented in his testimony at a prior hearing are that he is a high school graduate who last worked in April 2009 and that he then received unemployment benefits until January 2010. He worked in a warehouse, lifting up to 100 pounds of meat, until his position was eliminated. He previously worked in a warehouse until laid off. He had been a supervisor in charge of transportation and the warehouse. His medical problems began in 2003, when he injured his back lifting his father. In February 2009, the claimant went to a chiropractor and received pain medication from an orthopedist. A magnetic resonance imaging (“MRI”) study in 2010 revealed a bulging disc.

         The claimant alleged that lower back is his main problem, with stenosis and radiating pain. The pain interferes with his mobility and his ability to bend down. He is unable to lift heavy objects. He has not visited a doctor due to his financial difficulties. His only medication is over-the-counter Aleve and aspirin.

         The medical evidence of record shows that, prior to the amended alleged onset date, an MRI of the lumbar spine in January 2006 revealed a posterior broad-based disc protrusion with mild bilateral degenerative arthropathy, resultant mild bilateral neural stenosis, and mild lateral recess stenosis, with no definite nerve root impingement at ¶ 3-L4. There was posterior broad-based disc protrusion and osteophyte complex with moderate bilateral degenerative arthropathy and resultant moderate neural foraminal and lateral recess stenosis at ¶ 4-L5. (Exhibit 1F at 1). In February 2006, the claimant's back pain was noted as occasionally flaring. (Exhibit 1F at 10). The claimant was administered a pain injection for back pain and was given a note to be absent from work for two days. (Exhibit 1F at 11). In August 2008, the claimant was assessed to have plantar fasciitis. (Exhibit 1F at 3).

         From March 2009 through May 2009, the claimant went to a chiropractor who provided treatments. The chiropractor wrote a note in April 2009 that the claimant would need intermittent leave from work due to low back pain which interfered with the claimant's bending forward or bending back and prevented him from standing more than fifteen minutes at one time. (Exhibit 6F). The chiropractor wrote the note for a specific period of time related to accommodation for warehouse work.

         In October 2010, after the alleged onset date, the claimant went to Dr. Scott Arrowsmith, complaining of variable low back pain with occasional radiation to the legs as far as the knee. No. motor or sensory deficit was noted, and the claimant declined pain medication and muscle relaxants. (Exhibit 1F at 4). A November 2010 MRI of the lumbar spine revealed a minimal circumferential disc bulge with mild foraminal narrowing at ¶ 3-L4, a circumferential disc bulge with mild neural foraminal stenosis at ¶ 4-L5, and a circumferential disc bulge at ¶ 5-S1 with mild spinal stenosis. (Exhibit 1F at 2). Dr. Arrowsmith prescribed a Medrol Dosepak and Naprosyn for pain and Parafon for spasms. (Exhibit 1F at 5). In October 2011, Dr. Arrowsmith noted that the claimant experienced chronic back pain with spasms between half a day and three days each week. The claimant could vacuum only briefly and needed to use a riding lawnmower rather than a push mower. (Exhibit 1F at 8).

         On March 28, 2012, Dr. Darrell Murray performed a physical consultative examination of the claimant. The claimant complained of back spasms with vertebral deterioration and arthritis. The pain began two months after a 2003 motor vehicle accident. The claimant reported that he had a history of back pain with a flare in 2005, received pain medication and muscle relaxants in 2006, went to two chiropractors, received physical therapy in 2009, and again received pain medication and muscle relaxants from Dr. Arrowsmith in 2010. The claimant had arthritis in his hand, and he had past arthroscopic surgery of his knees and shoulder. The claimant identified his medication as only over-the-counter medication. The claimant told Dr. Murray that he could perform his personal care, walk more than one hundred feet, shop for groceries, clean his home, prepare his own food, launder clothes, make his bed, and lift twenty pounds. He also drove to the medical offices. (Exhibit 2F).

         Dr. Murray found the claimant's weight to be 250 pounds at six feet one inch tall. The claimant had no shortness of breath during the exam, and he arose from his chair with mild difficulty. His gait was normal with no ataxia; his motor strength was full; and his sensation was intact. He had positive straight leg raising test at 30 degrees actively and 45 degrees passively, and the range of motion of his back was slightly limited. Dr. Murray ascertained lumbar paravertebral muscle spasm with tenderness but not in the cervical spine. The claimant's arms and legs were not tender, and fine and gross manipulation were normal. He could walk on his heels and toes, stoop, pick up objects from the floor with both hands, and squat halfway. However, he had mild difficulty rising. He used no assistive device.

         Dr. Murray found the claimant's impairments to be degenerative disc disease of the lumbar spine and osteoarthritis. Dr. Murray opined that the claimant could sit six to eight hours with frequent position changes and walk four to six hours with frequent rest periods over the course of an eight-hour day. The claimant could occasionally bend, kneel, crawl, stoop, and crouch with mild limitation from back pain. Reaching, handling, feeling, grasping, pushing, pulling, and lifting would be without limitation. Previous radiologic imaging reflected minor disc space narrowing and disc desiccation at ¶ 3-L4 and L4-L5. (Exhibit 2F).

         Dr. Murray performed another physical consultative examination of the claimant in 2015. The physician concluded that the claimant had lumbar degenerative disc disease, history of L3-L5 herniated disc, osteoarthritis, and depressive disorder. His opinion of the claimant's capacity was the same as in 2010. (Exhibit 7F).

         The claimant worked briefly in 2014, but this work activity did not rise to the level of substantial gainful activity. The claimant's former supervisor wrote:

I am no longer with Xpedient Logistics so I do not have access to [the claimant's] records for exact dates, however, they were approximately January 2014 to March 2014. [The claimant] worked 4-5 hours a day shuttling trailers on the yard using a motorized yard tractor. Because of the nature of the business, he was able to work at his own pace putting full trailers up to the dock and pulling empty trailers off the dock and parking them on the lot. I believe his official title was “Yard Jockey.” Since his duties were essentially driving and he was able to work at his own pace, I did not have to make any accommodations.

(Exhibit 21E).

         Additional facts will be set forth as necessary during discussion of Plaintiff's arguments.

         III. Standard of Review

         An individual is considered to be disabled if he is unable 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). The impairment or impairments must result from anatomical, psychological, or physiological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques and must be of such severity that the claimant is not only unable to do his previous work but cannot, ...

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