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John Douglas Thornberg v. Michael J. Astrue

November 9, 2011

JOHN DOUGLAS THORNBERG, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Mitchell, M.J.:

MEMORANDUM and ORDER

Presently before the Court for disposition are cross motions for summary judgment. For the reasons set forth below the plaintiff‟s Motion for Summary Judgment (Docket No.11) will be granted; the defendant‟s Motion for Summary Judgment (Docket No.13) will be denied and the decision of the Commissioner will be reversed.

On May 2, 2011, John Douglas Thornberg, by his counsel, filed a complaint pursuant to Section 205(g) of the Social Security Act, as amended, 42 U.S.C. '405(g) for review of the Commissioner's final determination disallowing his claim for a period of disability or for disability insurance benefits under Sections 216(i) and 223 of the Social Security Act, as amended, 42 U.S.C. "416(i) and 423.

On September 18, 2006, the plaintiff filed an application for disability benefits alleging that he had been disabled since June 30, 2006 (R.124-126), and benefits were denied on December 19, 2006 and again denied upon reconsideration on November 27, 2007 (R.78-82, 85-91). On December 13, 2007, the plaintiff requested a hearing (R.93) and pursuant to that request a hearing was held on February 26, 2009 (R.30-74). In a decision dated March 13, 2009, benefits were denied (R.16-29), and on March 20, 2009, reconsideration was requested (R.15). Upon reconsideration and in a decision dated March 15, 2011, the Appeals Council affirmed the prior determination (R.2-4). On May 2, 2011, the instant complaint was filed.

In reviewing an administrative determination of the Commissioner, the question before any court is whether there is substantial evidence in the agency record to support the findings of the Commissioner that the plaintiff failed to sustain his burden of demonstrating that he was disabled within the meaning of the Social Security Act.

It is provided in 42 U.S.C. Section 405(g) that:

The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing. The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive....

Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Johnson v. Comm'r. 529 F.3d 198 (3d Cir.2008) and the court may not set aside a decision supported by substantial evidence. Hartranft v. Apfel, 181 F.3d 358 (3d Cir.1999).

At the hearing held on February 26, 2009 (R.30-74), the plaintiff appeared with counsel

(R.32) and testified that he was born on December 3, 1971 (R.40); that he graduated from college with a chemistry major (R.40) that he worked from June 2000 through April 2001 as a technical services representative for an internet domain provider (R.41) and that he worked as a customer services representative from November 2002 through February 2003 (R.43).

The plaintiff also testified that he experiences anger management issues (R.44); that he experiences constant severe back pain which radiates to his leg (R.44,47); that he takes medication for pain (R.47); that he has a bipolar disorder which exhibits more depressive than manic states (R.44-45); that he harms himself (R.46); that he can stand for about fifteen minutes (R.48); that he does not perform any household chores (R.49); that he was injured on March 6, 2006 while digging a ditch (R.50-51); that he attends physical therapy (R.57) and that he sleeps a lot due to his medications (R.60).

At the hearing a vocational expert was called upon to testify (R.64-71). He described the plaintiff‟s former work as sedentary to light skilled work (R.65). The witness was asked to assume an individual who could engage in light exertional work with the ability to stand and walk as well as sit and the witness testified that such a person could not perform the plaintiff‟s past work (R.66-67). However, the witness also testified that such an individual could perform a wide range of sedentary work (R.67-69). The witness also testified that if the plaintiff‟s testimony was totally credited, he could not be gainfully employed (R.70).

The issue before the Court for immediate resolution is a determination of whether or not there is substantial evidence to support the findings of the Commissioner that the plaintiff was not disabled within the meaning of the Act.

The term "disability" is defined in 42 U.S.C. Section 423(d)(1)(A) as: 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....

For purposes of the foregoing, the requirements for a disability determination are provided in 42 U.S.C. Section 423(d)(2)(A):

An individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous 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, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. For purposes of the preceding sentence ... "work which exists in the national economy" means work which exists in significant numbers either in the region where such individual lives or in several regions of the country.

A "physical or mental impairment" is "an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. Section 423(d)(3). These provisions are also applied for purposes of establishing a period of disability. 42 U.S.C. Section 416(i)(2)(A).

While these statutory provisions have been regarded as "very harsh," nevertheless, they must be followed by the courts. NLRB v. Staiman Brothers, 466 F.2d 564 (3d Cir. 1972); Choratch v. Finch, 438 F.2d 342 (3d Cir. 1971); Woods v. Finch, 428 F.2d 469 (3d Cir. 1970). Thus, it must be determined whether or not there is substantial evidence in the record to support the conclusion of the Commissioner that the plaintiff was not disabled within the meaning of the Social Security Act.

For this purpose, certain medical evidence was reviewed.

The plaintiff received routine treatment at Kaiser Permanente between January 7, 2006 and February 6, 2006. His primary diagnosis was lumbar radiculopathy (R.235-362).

The plaintiff received epidural injections for right leg and knee pain at Fairfax Anesthesia Associates between February 3, 2006 and February 28, 2006 (R.363-384).

The plaintiff was treated for back and leg pain at the Prince William Hospital between March 31, 2006 and April 7, 2006. He was also diagnosed with morbid obesity. It was also observed that the plaintiff‟s reports of pain were out of proportion to his symptoms (R.385-481).

In a range of motion report completed on August 21, 2006, all motion was noted to be "normal" (R.482).

The plaintiff was treated for back and leg pain at Northern Virginia Orthopedics between February 27, 2006 and August 21, 2006. Exercise and physical therapy as opposed to surgery were recommended. Steroid injections were also administered. A diagnosis of multilevel lumbar disc herniations and degenerative disc disease was made (R.483-514).

In a disability report dated September 11, 2006 Dr. Steven C. Scherping reported low back pain but no acute distress; diminished range of motion in the lumbar spine and disc herniations at L3-4 and L4-5. Dr. Scherping recommended that no surgery be performed but suggested a pain management program and weight loss (R.520-523).

The plaintiff was treated at the Gainsville Family Practice between February 27, 2006 and September 27, 2006 for general ailments and orthopedic problems (R.524-573).

The plaintiff was treated for an ulcer at the offices of Associates in Gastroenterology between March 31, 2006 and September 27, 2006 (R.574-589).

The plaintiff was treated at the Nova Advanced Pain Management Center between February 27, 2006 and October 4, 2006 for back and leg pain. Epidural steroid injections were provided for pain relief (R.590-608).

In a report of a psychiatric evaluation conducted on October 19, 2006 a bipolar disorder was noted (R.515-519).

In a report from the Day Break Counseling Services covering treatment between August 30, 2006 and October 19, 2006 a bipolar ...


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