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Mark Rollins v. Commissioner of Social Security

January 6, 2011

MARK ROLLINS, PLAINTIFF,
v.
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



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

NOT FOR PUBLICATION

OPINION

Presently before the Court is Plaintiff Mark Rollins' Appeal seeking review of a final determination by Administrative Law Judge ("ALJ") Dennis O'Leary denying his application for disability insurance benefits pursuant to §§ 216(i), 223(d), and 1614(a)(3)(A) of the Social Security Act. This Court has considered the submissions made in support of and in opposition to the instant appeal and decides this matter without oral argument pursuant to Federal Rule of Civil Procedure 78. For the reasons set forth below, the Court finds that the ALJ's determination that Plaintiff's statements concerning the intensity, persistence and limiting effects of his symptoms were not credible and that Plaintiff did not suffer from any severe non-exertional limitations is supported by substantial evidence. Therefore, the use of a vocation expert was not required. The Court, however, remands for the ALJ to properly address Plaintiff's objection to the post-hearing evidence.

I. FACTS AND PROCEDURAL HISTORY

On October 16, 2007, Plaintiff filed a Title II application for Social Security Disability Insurance Benefits alleging disability beginning on June 8, 2006. This claim was denied initially and again upon reconsideration. On March 30, 2009, a hearing was held before the ALJ who found that Plaintiff was not disabled under sections 216(i) and 223(d) of the Social Security Act. Plaintiff subsequently appealed this decision.

At the time of the hearing, Plaintiff was fifty-three (53) years old with a seventh grade education. (R. at 23.) Plaintiff worked in the construction industry from 1992 to1997. (Id. at 27,33.) From approximately 1997 to 2000, Plaintiff unsuccessfully attempted to open his own bar. (Id. at 33-34.) In 2000, Plaintiff began work as a mechanic and chemical barrel cleaner for the trucking company, Tunnel Barrel, lifting and carrying weight up to two hundred pounds. (See Id. at 24-25.) Plaintiff's employment with Tunnel Barrel was terminated in June 2006 as a result of Plaintiff's regular dermatologist appointments, discussed below, which caused him to miss work in the mornings three days a week. (Id. at 28-29.) Plaintiff began collecting unemployment for six months after he was terminated and has not been gainfully employed since. (Id. at 33.)

The record indicates that Plaintiff suffers from a history of arthritis of the lumbar spine, type II diabetes, and mycosis fungoides. (Id. at 12.) Plaintiff contends the mycosis fungoides causes excessive itching, swelling and burning sensations on his skin, which is aggravated by exposure to dust or sweat. (Id. at 31.) During his employment with Tunnel Barrel, Plaintiff was treated by his primary physician, Dr. DeCasta. (Id. at 27.) In April 2005, Plaintiff was referred to dermatologist, Dr. Grossier, who diagnosed Plaintiff with the mycosis fungoides after seeing the results of a skin biopsy. (Id. at 149.) As treatment, Dr. Grossier recommended Plaintiff undergo phototherapy three times per week. (Id. at 158.)

In connection with this action, at the request of his attorney, Plaintiff was examined by Dr. Ahmad and Dr. Latimer in October 2007. (See Id. at 334-339.) After performing an orthopedic evaluation, Dr. Ahmad determined that Plaintiff suffered from a spinal strain and fibromyositis. (Id. at 335.) According to Dr. Ahmad, Plaintiff's disability is 30% of total considering his exertional limitations. (Id. at 336.) Dr. Latimer administered a psychological evaluation and concluded that Plaintiff suffered an adjustment disorder as well as severe anxiety and depression. (Id. at 339.) According to Dr. Latimer, Plaintiff is totally and permanently disabled as a result of his non-exertional psychological limitations. (Id.)

At the request of the Social Security Administration, in connection with this action, Plaintiff later underwent an independent physical exam on December 21, 2007 performed by Dr. Wilchfort, and an independent psychiatric evaluation on January 31, 2008 performed by Dr. Arrington. (See Id. at 340, 349.) Dr. Wilchfort reported that Plaintiff had diabetes, back pain, and eczema, but that his extremities were normal and no deficits were noted with his range of motion in any extremity. (Id. at 340-41) Dr. Wilchfort's diagnosis suggested that Plaintiff had only minor exertional limitations as a result of his impairments. (See Id.) Dr. Arrington noted that Plaintiff would have some difficulty with complex tasks, but would have no trouble relating to others or dealing with stress. (Id. at 351.) On a daily basis, Plaintiff reported being able to dress, bathe, groom, cook, prepare meals, clean, do laundry, manage money, and drive. (Id.) He has good relationships with his family and friends, and enjoys playing sports. (Id.) Dr. Arrington's psychiatric evaluation indicated that Plaintiff does not suffer from any severe non-exertional limitations and his overall prognosis was good. (Id.)

At the request of the ALJ, in April 2009, an independent medical expert, Dr. Fechner, reviewed the record in its entirety and submitted post-hearing medical interrogatories. (Id. at 392.) He stated that Plaintiff suffered from mycosis fungoides, arthritis of the lumbar spine and type II diabetes. (Id.) Dr. Fechner opined that Plaintiff was capable of a full range of medium work. (Id. at 394.) On April 8, 2009, the ALJ sent Plaintiff a proffer letter regarding the post-hearing interrogatories, which allowed Plaintiff to request a supplemental hearing or object to the medical interrogatories. (Id. at 119.) Plaintiff did not explicitly request a supplemental hearing in response to the ALJ's proffer letter. However, in a letter dated April 17, 2009, Plaintiff did object to the post-hearing evidence on the grounds that Dr. Fechner did not have a chance to hear from Plaintiff nor did Plaintiff have the opportunity to examine Dr. Fechner. (Id. at 122.)

At steps one and two of Plaintiff's hearing, the ALJ found that Plaintiff had not been involved in any substantial gainful activity and that he suffered from mycosis fungoides, type II diabetes mellitus and lower back pain due to arthritis. (Id. at 12.) At step three, the ALJ found that Plaintiff's impairments did not meet or medically equal any of the federal listings. (Id. at 14.) At step four, the ALJ determined that Plaintiff had a residual functional capacity ('RFC") of being able to perform a full range of medium work, and that he was unable to perform his past relevant work. (Id. at 15.) At step five, the ALJ found that jobs exist in significant numbers in the national economy that Plaintiff can perform. (Id.)

II. LEGAL STANDARD

A. Determining Disability

Pursuant to the Social Security Act, a claimant is required to show that he is disabled based on his 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 twelve months." 42 U.S.C. § 1382c(a)(3)(A). Taking into consideration his age, education, and work experience, disability will be evaluated by the claimant's ability to engage in any form of substantial gainful activity existing in the national economy. Id. at § 423(d)(2)(A). If he can perform substantial gainful activity within the national economy, then he will not be considered disabled. Id. Each claimant's disability is ...


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