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Allen v. Commissioner of Social Security

February 19, 2010

TODD R. ALLEN, PLAINTIFF,
v.
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Simandle, District Judge

OPINION

I. INTRODUCTION

This matter comes before the Court pursuant to Section 205(g) of the Social Security Act, as amended, 42 U.S.C. § 405(g) (2006), to review the final decision of the Commissioner of the Social Security Administration denying the application of Plaintiff Todd R. Allen for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act. See 42 U.S.C. §§ 401-34 (2006).

At issue in this case is whether the ALJ properly determined the Plaintiff's residual functional capacity at step four.

For the reasons set forth below, the Court will vacate the decision of the ALJ and remand for further proceedings consistent with this opinion.

II. BACKGROUND

Mr. Allen was born on May 25, 1974, and currently lives in Paulsboro, NJ with his fiancé and two children. (R. at 99, 16-17.) He graduated from high school, attended all "regular," non-special education classes, is 5'11" tall and weighs 330 pounds. (R. at 16-17.) Plaintiff sustained a work-related shoulder injury on October 28, 2005, and underwent an arthroscopic labral reconstruction of the left shoulder to correct a chronic separation. (R. at 25, 208.)

A. Procedural History

On September 11, 2002, Plaintiff filed an initial application for DIB which was denied initially and upon reconsideration. (R. at 50.) A hearing request was dismissed on January 9, 2004 as Mr. Allen no longer wished to pursue DIB and no further appeal was filed. Plaintiff does not allege being under a disability until after his earlier claim was denied. (Id.) There is no reason to consider the question of whether the decision made with respect to the prior application should be reopened and revised. Plaintiff filed his current application for DIB on January 19, 2006. (Id.) In his application for DIB, Plaintiff alleges he became unable to work because of his "disabling condition" on November 16, 2005. (R. at 99.) This claim was denied initially and a hearing appeal was filed on March 13, 2007. (Id.) On June 2, 2008, the ALJ rendered his opinion denying Plaintiff entitlement to DIB. Plaintiff sought review of that decision, and the Appeals Council denied that request. (R. at 1.) Thus, the decision of the ALJ became the final decision of the Commissioner. Plaintiff timely filed this action.

B. ALJ Opinion

The ALJ first found that Plaintiff met the insured status requirements for disability benefits through December 31, 2011, pursuant to 42 U.S.C. § 423(c). (R. at 102-03.)

The ALJ proceeded through the five steps of analysis required by regulation. At step one, regarding substantial gainful activity, the ALJ did not find any such activity since November 16, 2005, the date of the alleged onset of disability. Plaintiff has earnings on record from 2006 and 2007 but the ALJ determined that these were not sufficient enough to qualify as substantial gainful activity. (R. at 51.) At step two, the ALJ determined that Plaintiff showed the following impairments: residuals of left (non-dominant) shoulder surgery, obstructive sleep apnea, morbid obesity, and excessive daytime somnolence.

(R. at 52.)

At step three, the ALJ had to determine if Plaintiff has a severe impairment that meets or equals a listed impairment in 20 C.F.R. Part 404, Subpart P, Appendix 1. The ALJ determined that Plaintiff did not meet or equal the following relevant Listing Requirements: 1.02, Major Dysfunction of a Joint(s); Listing 1.07, Fracture of an Upper Extremity with Nonunion; and Listing 3.10, Sleep-Related Breathing Disorders, as well as Social Security Ruling ("SSR") 02-1p, Evaluation of Obesity.

Since the ALJ determined that Plaintiff did not meet or equal any Listing in Appendix 1, Subpart P, Regulations No. 4, he had to determine Plaintiff's residual functional capacity ("RFC") at step four. A person's RFC is based on their ability to engage in work-related physical and mental activities in a work setting on a regular and continuing basis. A "regular and continuing basis" is based on working five days a week and eight hours each day or an equivalent work schedule. The ALJ determined that Plaintiff can perform less than medium work-light work and sedentary work. (R. at 55-56.) According to the ALJ, Plaintiff:

retains the residual functional capacity to perform the exertional demands of light work, or work which requires maximum lifting of twenty pounds and frequent lifting of ten pounds . . . . If someone can do light work, we (the Social Security Administration) determine that the individual can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods. The claimant's capacity for light work is diminished by significant additional limitations as he is able to lift/carry ten pounds frequently and twenty pounds occasionally; can sit for six hours in an eight hour workday; is able to stand and/or walk for six hours in an eight hour workday; can occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and crawl, but can never climb ladders, ropes, and scaffold; and must avoid all exposure to hazards, such as machinery and heights.

(Id.)

The ALJ based his opinion on Plaintiff's in-court testimony and "Function Report-Adult" and "Disability Report-Appeal" questionnaire, and the assessments, infra, conducted by Plaintiff's shoulder surgeon Dr. Thomas A. Dwyer, treating physician Dr. Gregory Breen, consulting physician Dr. Nithyashuba Khona, and state agency medical consultant Dr. Robert Walsh.

At step four, the ALJ had to determine if Plaintiff could return to his past relevant work. Past relevant work is defined as work that (1) occurred within the past fifteen years (the so called "Recency" requirement, (2) was of sufficient duration to enable the worker to learn to do the job (the so called "Duration" requirement), and (3) was Substantial Gainful Activity. The ALJ referred to the U.S. Department of Labor Dictionary of Occupational Titles and Selected Characteristics manuals ("DOT") to determine the exertional requirements of Plaintiff's past relevant work as a golf pro-shop cashier and assistant manager. (R. at 59.) Mr. Allen's past relevant work is rated as light work as defined in the Social Security Act. Plaintiff's limitations, the ALJ found, do not prevent him from performing the duties of a golf pro-shop cashier and assistant manager. (R. at 60.)

At step five, the ALJ must consider Mr. Allen's ability to perform other work that exists in the national economy. Mr. Allen would not be disabled if there is a significant number of jobs in the national economy that he could perform. The ALJ found 1400 light and 200 sedentary unskilled jobs in which he believes Mr. Allen would be able to perform based on his age, education and RFC. (R. at 60.) In addition, the ALJ noted Mr. Allen "is able to make an adjustment to work which exists in significant numbers in the national economy." (Id.)

C. Evidence in the Record

1. Plaintiff's Testimony and Application Materials

Plaintiff testified before the ALJ during a hearing on June 2, 2008, and described how his condition prevents him from being able to maintain a steady job. Mr. Allen stated he is not allowed to drive due to his sleep apnea. He claims he has been involved in five automobile accidents in a three-month period. (R. at 28.) His fiancé and family members transport him in their vehicles when necessary. (R. at 18.) He described the pain in his left shoulder that resulted from an injury while working for Campbell's Auto Express and subsequent surgery. There is numbness, an absence of muscle tone, and he feels tired. (R. at 26.) To address the breathing problem, Plaintiff stated he initially received a CPAP machine to use and then a BiPAP machine to replace the first one because he could not breathe well with the former. (R. at 29.) However, by the time of this hearing the BiPAP machine had not been working for the past four or five months, and Mr. Allen could not have it replaced due to a lack of health insurance. (R. at 27.) Plaintiff stated that he saw a slight improvement in his breathing. (R. at 28.)

Plaintiff stated that his breathing problem carries over from sleeping at night to the daytime. He attributed his tiredness during the daytime to his lack of adequate rest at night. He wakes up feeling tired and falls asleep during the day. (Id.) Sometimes his children wake him up. (Id.) Mr. Allen believes this occurs over twenty times each day. He stated that the only way he knows he is sleeping, besides someone waking him, is by snoring. (R. at 29.) Plaintiff thinks the condition is worsening. (R. at 30.)

Mr. Allen also discussed his weight gain. The Plaintiff gained sixty to seventy pounds since the onset of the problems he claims he has. (Id.) He has tried to lose weight by cutting back on alcohol and carbohydrate consumption in addition to using fat burners, but he stated that none of these measures has brought about significant weight loss. (Id.) Furthermore, Mr. Allen stated that he has high blood pressure, renal failure and gout. (R. at 31.) The Plaintiff received prescription pills to help the obstructive sleep apnea syndrome ("OSAS") but he did not take them regularly. (Id., 122.)

Plaintiff spends his time playing with his children, doing some household chores, and going to the gym once a week. (R. at 36-37, 129.) In an undated "Disability Report - Appeal," Plaintiff stated that he orders food for lunch because cooking certain foods takes too long and he has burned food before due to falling asleep. (R. at 159.) He receives temporary disability benefits but does not receive public assistance or food stamps. (R. at 20-21.) Mr. Allen's mother and brother assist him in taking care of his son. ...


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