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Holmes v. Astrue

March 12, 2009


The opinion of the court was delivered by: Judge Nora Barry Fischer



Plaintiff, Mark Holmes ("Plaintiff") brings this action pursuant to 42 U.S.C. § 405(g), seeking review of the final determination of the Commissioner of Social Security ("Commissioner") denying Plaintiff's application for supplemental security income ("SSI") under Title XVI of the Social Security Act, 42 U.S.C. §§ 1614(a)(3)(A). This matter comes before the Court on cross-motions for summary judgment filed by the parties pursuant to Federal Rule of Civil Procedure 56. The record has been developed at the administrative level. For the following reasons, the Commissioner's Motion for Summary Judgment [10] is denied and Plaintiff's Motion [8] is denied, in part and granted, in part in that the decision of the Administrative Law Judge is vacated and remanded for further proceedings consistent with this opinion.


On January 9, 2006, Plaintiff filed his application for SSI, alleging disability beginning April 4, 1998. (Docket No. 6 at 18, R. at 18; 227-228; 228-230); (hereinafter "R. at ").*fn1 Plaintiff's claim for benefits was initially disapproved on April 17, 2006. (R. at 18; 217-218). He requested a hearing before an Administrative Law Judge ("ALJ") and a hearing was held on June 7, 2007 in Morgantown, West Virginia. (R. at 18; 361-385). At the hearing, Plaintiff, who was represented by counsel, appeared and testified. (R. at 18; 361-385). On the date of the hearing, Plaintiff was 45 years of age and had completed the eleventh grade. (R. at 25; 365). Dr. Larry Ostrowski,*fn2 an impartial vocational expert, also testified. (see R. at 382).

By decision dated August 27, 2007, the ALJ denied Plaintiff's claim for SSI benefits, concluding that Plaintiff had not been under a "disability" within the meaning of the Social Security Act. (See R. at 18-27). Thereafter, Plaintiff requested a review of the ALJ's decision by the Appeals Council. (R. at 359-360). Plaintiff's request for review was denied on April 1, 2008, thereby making the ALJ's decision the final decision of the Commissioner. (R. at 7-10). Plaintiff filed the instant action with this Court on April 18, 2008, seeking judicial review of the Commissioner's decision. (Docket 3 at 1). Plaintiff's Motion for Summary Judgment was filed on September 30, 2008 (Docket No. 8), followed by the Commissioner's Motion filed on October 20, 2008. (Docket No. 10).


A. General Background

Plaintiff was born on August 8, 1961. (R. at 25). Plaintiff was forty-four (44) years old on the date that he filed his application for SSI benefits, and was forty-five (45) at the time of his hearing before the ALJ. (R. at 18). For decisional purposes, Plaintiff was considered a "younger individual" under 20 C.F.R. § 416.963. (R. at 25). Plaintiff completed eleven years of education and did not participate in any special education classes. (R. at 25, 252). Plaintiff has not completed any type of special job training, trade or vocational school. (R. at 252). However, he has worked in the past fifteen years doing heavy semiskilled work building trusses for houses.

(R. at 254). In addition, Plaintiff reported doing assembly line box assembly at the medium work level using special tools and equipment, but per his hearing testimony, lighter work was done only briefly. (R. at 249). Plaintiff also reported that he tried to work in 2003 and earned some income but was fired "because [he] could not go to work due to [his] back pain." (R. at 233, 249). Plaintiff previously filed concurrent applications for Title II and Title XVI disability benefits on December 15, 2000, with a protective filing date of November 15, 2000. (R. at 63-65). Those applications were initially denied on March 23, 2001 (R. at 50-53) and then denied in a hearing dismissal decision issued on September 18, 2001 by the Honorable Barry Anderson.

(R. at 216-218). In the present action, Plaintiff maintains that he is disabled due to his severe medical impairments, therefore, he is entitled to SSI benefits. (R. at 20). The Court will now review his claim.

B. Medical Background

The record shows that between 1994 and 1998 Plaintiff had been steadily working and earning income. (R. at 233). In April of 1998, Plaintiff injured his lower back while he was working when he tripped and got his foot stuck between a railroad and an iron table. (R. at 146).

He received treatment for this injury and thereafter continued to work but only did light duty, which resulted in increasing his pain. (Id.). Plaintiff was then treated by a chiropractor but continued to experience back pain and reported that his symptoms had gotten worse since the onset in April of 1998. (Id.). On July 7, 1998, Dr. Melvin Alberts diagnosed Plaintiff with a lumbar spinal strain, put him on medication, and ordered him to receive treatment three times a week for four weeks. (Id.).*fn3

In January of 1999, Plaintiff was evaluated by Dr. William J. Mitchell and listed as disabled due to his back pain.*fn4 (R. at 168). He was seen again by Dr. Mitchell in November of 1999 for the same condition and was noted as having "paralumber muscle spasms." (R. at 161). On January 2, 2001, Plaintiff was seen by Dr. Mitchell for recurring low back pain and was noted as taking oxycontin at that time. (R. at 149-153). Dr. Mitchell listed Plaintiff as disabled again and noted that at that time Plaintiff remained "off duty" due to low back pain and intermittent swelling in the low back area. (R. at 158-160).

Still unable to return to work, on February 16, 2001, Plaintiff was diagnosed by Dr. H. Gulati has having developed chronic pain syndrome and was recommended to see a psychologist and a psychiatrist. (R. at 174). On February 20, 2001, Dr. Gulati's report was reviewed as part of Plaintiff's SSI claim and Plaintiff's allegations regarding his back pain and radicular pain which he claimed interrupted "even light activities of normal living" were "felt not to be credible" by the doctor. (R. at 187-188). In evaluating Plaintiff's SSI claim under Titles II and XVI, the Commissioner used these findings to determine that Plaintiff was not disabled under the rules and deny him benefits on March 23, 2001. (R. at 212). This determination was upheld by Administrative Law Judge Barry Anderson on September 18, 2001. (R. at 218).

On January 5, 2006, Plaintiff was admitted to Southwest Regional Medical Center with complaints of chest pain associated with nausea and left arm numbness and was tested for hypokalemia*fn5 and myocardial ischemia.*fn6 (R. at 251, 283). Plaintiff was examined and treated by Dr. Jayesh B. Gosai. (R. at 283-284). Dr. Gosai noted that Plaintiff was experiencing atypical chest pain "most likely secondary to excessive alcohol and smoking indulgence." (R. at 284, 314-315). Dr. Gosai did not rate Plaintiff as disabled on follow-up and found that he was drinking about twelve (12) beers a day. (R. at 283-284). He further indicated that Plaintiff had a normal EKG but that test results did show mild hypokalemia while his chest pain had resolved itself since his admission on January 5, 2006. (R. at 283). Dr. Gosai's report provides Plaintiff's past medical history as being significant for hypertension while also including a history of hyperlipidemia, spinal stenosis, herniated lumbar disc, tobacco and alcohol abuse, and most recently hypokalemia. (R. at 314). At the time of this report, Plaintiff had no musculoskeletal complaints other than chronic low back pain where he has a history of disc herniation and spinal stenosis. (R. at 314). The doctor noted this chronic condition as stable. (R. at 314).

As part of the Commissioner's evaluation of Plaintiff's claim filed on January 12, 2006, in a field office disability report dated the same day, Plaintiff was interviewed over the telephone and was found not to be credible because his story allegedly kept changing during the interview.

(R. at 245-246). The interviewer further noted that there were no notable signs of disability during the interview. (R. at 246).

During a subsequent follow up visit with Dr. Gosai's office on March 2, 2006, Plaintiff continued to complain of back pain. (R. at 331). Dr. Gosai's impressions on his exam of Plaintiff on March 7, 2006 were that Plaintiff had "diminished disc pace, bony spurs and changes of disc desiccation along with mild to moderate disc bulge, which is not causing significant compression of the thecal sac." (R. at 332). Plaintiff showed no signs of bony injury and there was no evidence of spinal stenosis. (R. at 332).

In a report dated April 6, 2006, Dr. Jason Rasefske found that Plaintiff had been seen infrequently for his chronic back pain, that he was not attending physical therapy and that he did not require the assistance of a device to move around. (R. at 323). He further noted that despite allegations of persistent symptoms, Plaintiff has not been prescribed medication for those symptoms. (Id.). Dr. Rasefske found Plaintiff's statements to be partially credible based on the evidence of record. (Id.). He further reported that his residual functional capacity assessment was different than the opinions expressed by Plaintiff's treating physician, Dr. Gosai, in a report dated 3/23/06 because of "inconsistenices with the totality of the evidence in Plaintiff's file." (R. at 324). He viewed some of the opinions contained in Plaintiff's reports as "an overestimate of the severity of [Plaintiff's] functional restrictions." (Id.). ...

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