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Richard Bernard v. Michael J. Astrue

March 15, 2013

RICHARD BERNARD,
PLAINTIFF
v.
MICHAEL J. ASTRUE, DEFENDANT



The opinion of the court was delivered by: Martin C. Carlson United States Magistrate Judge

(Judge Conaboy)

(Magistrate Judge Carlson)

REPORT AND RECOMMENDATION

I. INTRODUCTION

Richard Bernard brought this action pursuant to 42 U.S.C. § 405(g) on August 17, 2011, appealing the final decision of the Commissioner of Social Security to deny Bernard's claim for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act, 42 U.S.C. §§ 401-433, 1381-1383f.

Bernard applied for DIB on March 31, 2008, alleging that he had been disabled since October 24, 2005, as the result of pain in his back and lower extremities he suffers following back surgery. The Social Security Administration denied the plaintiff's claim initially on September 4, 2008. The plaintiff timely filed a request for a hearing on September 18, 2008, and a hearing was thereafter held before Administrative Law Judge ("ALJ") Sridhir Boini on October 21, 2009. In a decision issued on January 27, 2010, the ALJ denied the plaintiff's claims for DIB. Thereafter, the plaintiff requested review by the defendant's Appeals Council, which denied the request on June 17, 2011, rendering the ALJ's decision the final decision of the Commissioner of Social Security with respect to the plaintiff's claims for DIB.

In this action, the plaintiff argues that the Commissioner's decision is not supported by substantial evidence, and otherwise contains errors of law that require reversal or remand for a new hearing. Specifically, the plaintiff argues that the ALJ erred in determining that the plaintiff retained the residual functional capacity that enabled him to perform light, sedentary work, and thus in finding that the plaintiff was not totally disabled within the meaning of the Social Security Act and its implementing regulations.The plaintiff argues that the ALJ improperly rejected the opinion of the plaintiff's treating physician without substantial basis, and erroneously discounted the plaintiff's subjective complaints of his pain and physical limitations based upon insufficient evidence.

The defendant answered the complaint on October 14, 2011. Thereafter, the plaintiff filed a brief in support of his appeal on January 27, 2012. On February 28, 2012, the defendant filed a brief urging that the court affirm the ALJ's decision. Thereafter, the plaintiff filed a reply brief in further support of his appeal on March 30, 2012. On September 25, 2012, the case was referred to the undersigned for pretrial management and the preparation of a report and recommended disposition.

Upon consideration of the entire record submitted by the parties, we conclude that the ALJ's rationale for rejecting the plaintiff's claim for DIB was inadequate and based upon insufficient evidence. We particularly find that the ALJ's explanation for according little to no weight to the plaintiff's treating physician's opinion regarding the plaintiff's serious physical limitations was inadequate because it provided little evidentiary basis to explain why this opinion evidence was rejected in favor of other evidence from non-treating sources. We are thus unable to discern from the record how the ALJ reached his ultimate conclusion regarding the extent of the plaintiff's physical limitations, and regarding the weight actually given to the treating physician's medical opinions.

Mindful of our deferential standard of review, we nevertheless also find that the ALJ's explanation for rejecting the plaintiff's subjective description of his pain was inadequate and falls short of what is required under the law in this area.

For these reasons, we will recommend that the district court remand this matter to the Commissioner so that a proper determination can be made regarding the plaintiff's claim for DIB based upon the record evidence submitted in this case.

II. BACKGROUND

Richard Bernard was born on May 15, 1963, and was 42 years old on his alleged onset date of disability, 43 years old at his date last insured, and 46 years old on the date of his hearing. (R. 111.) Bernard is considered a "younger individual" under the Commissioner's regulations. 20 C.F.R. § 416.963. The plaintiff has a high school education, (R. 133), and his past relevant work includes time spent as a chauffeur, an auto parts salesman, a shipping and receiving worker, and a warehouse worker. (R. 74-76, 138-144.)

Bernard claims that he became disabled as the result of degenerative disc disease of the lumbar spine, which occurred following surgery that he had in 1992, as well as radiculopathy into the right leg, and left knee pain stemming from reconstructive surgery. The plaintiff claims that these conditions combine to cause chronic pain that substantially limit the plaintiff's ability to perform daily activities and to engage in work-related activities.

Following a hearing, the ALJ concluded that the plaintiff was not entirely disabled, but rather had the residual functional capacity to perform sedentary work, as defined in 20 CFR 404.1567(a) with the ability to carry, at most, 10 pounds on an occasional basis and 5 pounds on a frequent basis. The claimant had the ability to use his upper extremities without restriction. With respect to activities such as standing or walking, he could not have performed these type of activities over a prolonged or continuous basis and not over any uneven terrain. The claimant would have been able to perform a job that permitted him to alternate between sitting or standing on a self-directed basis. The claimant could have worked in an occupation that required, at best, occasional operation of foot controls or climbing of ladders, scaffolds or ropes. The claimant would have had the capacity to climb ramps or stairs occasionally. The claimant did not require assistive device for balancing and he would have been able to perform balancing on an occasional basis. The claimant would have been able to perform an occupation that required only at the most, occasional stooping, crouching, kneeling or crawling. The claimant was able to perform work that did not involve more than, at best, a moderate exposure to an environment that involved the presence of moving machinery or moving motor vehicles, or an exposure to unprotected heights on more than a moderate basis. The claimant would have been able to work in atmospheres where there would not be an exposure to extreme cold or heat or excessive wetness or humidity for extended periods of time. His exposure capacity for temperature extremes, humidity, or wetness, would be, at best, at a moderate basis. The claimant would have been able to work in an occupation where the communication dynamic is mostly oral, with maybe some limited written communication. Because of the interference of the claimant's pain on his concentration, he would have been able to perform work tasks that were at an unskilled level.

(R. 19, Finding of Fact No. 5.) On the basis of this assessment, and the conclusions regarding the claimant's residual functional capacity, the ALJ found that the plaintiff could not return to any of his past relevant work, but could nevertheless perform sedentary work in a number of different job capacities existing in the regional and national economy. (R. 23-24, Findings of Fact Nos. 6, 10.) Accordingly, the plaintiff's claim for DIB was denied at step five of the sequential evaluation applied by the ALJ, as explained more fully below.

III. DISCUSSION

A. Standards of Review--The Roles of the Administrative Law Judge and This Court

Resolution of the instant social security appeal involves an informed consideration of the respective roles of two adjudicators--the administrative law judge (ALJ) and this court. At the outset, it is the responsibility of the ALJ in the first instance to determine whether a claimant has met the statutory prerequisites for entitlement to benefits. To receive disability benefits, a claimant must present evidence which demonstrates that he has 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. § 432(d)(1)(A). Furthermore,

[a]n individual shall be determined to be under a disability only if [her] physical or mental impairment or impairments are of such severity that [she] is not only unable to do [her] previous work but cannot, considering [her] 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 [she] lives, or whether a specific job vacancy exists for [her], or whether [she] would be hired if [she] applied for work. For purposes of the preceding sentence (with respect to any individual), "work which ...


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