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Hurt v. Colvin

United States District Court, D. New Jersey

July 25, 2017

LEEDRUE HURT, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM AND ORDER

          PETER G. SHERIDAN, U.S.D.J.

         This matter is before the Court on the appeal of a determination by the Social Security Administration decision that Plaintiff, Leedrue Hurt, was not entitled to disability insurance benefits (DIB) or supplemental security income (SSI) under Titles II and XIV of the Social Security Act (Act). 42 U.S.C. §§ 401-434, 1381-1383f for the period between January 17, 2006 and November 18, 2008. After reviewing the administrative record, this Court finds that the ALJ's decision is not supported by substantial evidence and vacates the Commissioner's decision to deny Plaintiff disability benefits.

         I.

         Overview

         The procedural history for this case is lengthy, but suffice it to say it has been remanded on several occasions for additional findings of facts.

         Plaintiff initially applied for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI) on March 28, 2006 alleging disability as of January 17, 2006 due to a medial meniscus tear in his right knee, and hearing loss (R. 211-18, 234). At the time of this initial application, Plaintiff was 47 years old which, for purposes of the Social Security Administration regulations, placed Plaintiff in the category of “younger individual.” Plaintiff requested a hearing before an Administrative Law Judge, and on August 20, 2009, a hearing was held before the Hon. Michael Lissek, ALJ and a vocational expert testified. (R. 60-86). On August 31, 2009 the ALJ denied Plaintiff's application for benefits, but on October 27, 2010, the Appeals Counsel granted Plaintiff's request for review, and the ALJ's decision was remanded to ALJ Lissek. (R. 103-06).

         On March 1, 2001, ALJ Lissek issued a partially favorable decision, finding that Plaintiff was disabled and entitled to benefits as of November 18, 2008, the date on which Plaintiff turned 50. The Social Security Administration categorizes people who are aged 50-54 as “closely approaching advanced age.”[1]

         On March 12, 2012, on the Commissioner's own motion, this Court remanded Plaintiff's claim for further administrative proceedings. On June 11, 2012, the Appeals Council affirmed the ALJ's decision finding that Plaintiff was disabled beginning November 18, 2008, and remanded the decision to a new ALJ for administrative proceedings. On December 12, 2012, the ALJ Dennis O'Leary issued a decision that from January 17, 2006 through November 18, 2008, Plaintiff was capable of performing a number of sedentary jobs[2] that exist in the national economy, and that Plaintiff was not disabled during that time period. On April 5, 2013, the Appeals Council once again remanded Plaintiff's case for further evaluation, directing the ALJ to evaluate the treating and non-treating source opinions, evaluate Plaintiff's subjective complaints; obtain additional evidence with regard to Plaintiff's obesity, bilateral hearing loss, knee impairment, and ability to concentrate; and further consider Plaintiff's maximum residual functional capacity (R. 532-34).

         On remand to a third ALJ, Leonard Olarsch, a hearing was held and a vocational expert testified. On August 28, 2013, ALJ Olarsch opined that from January 17, 2006 to November 8, 2008, Plaintiff was capable of performing a number of sedentary jobs that exist in the national economy, and that Plaintiff was not disabled during that time period. (R. 405-408).

         Issue

         The issue currently before this Court is whether the ALJ's decision of August 28, 2013 that Plaintiff is not entitled to a period of Disability Insurance Benefits for the time period January 17, 2006 to November 8, 2008 is based on substantial evidence. The evidence in the record from this time period is discussed below.

         II.

         Statement of Facts

         Plaintiff has a high school education up to the 11th grade. Plaintiff has past work experience as a garbage collector/driver and as a delivery helper. He also has some past work experience as a custodian at a vocational school in Woodbridge. (R. 235, 240).

         In an April 25, 2006 Adult Function Report, Plaintiff described his day from the time he arises and until his bedtime as “I can't get up because I am in so much pain. When I do get up I have to use my crutches.” He stated that he does a little housework, but that his son helps him a great deal with the chores. He stated that he lays around a lot and elevates his legs because of the pain. He stated that he is in a lot of pain when he tries to sleep and it is hard to sleep on his back and sides because of the pain. It's hard for him to put on his pants, he can't take a bath because he can't get up, and he has difficulty using the toilet because it is hard to bend his knees. (R. 249). He reported that he cooks about three times a week but it takes him two hours because he has to sit down and rest. He stated that he doesn't drive because of the pain. When he goes to the grocery store he uses one of the motorized carts to do his shopping. Socially he watches television, plays cards, watches sports. He talks on the phone, and plays around on the computer. He doesn't go anywhere except the food store and the doctor's office. (R. 252). He stated that he can lift about twenty pounds and that he can walk about half a block before stopping. Depending on the amount of pain he is having, he can get up and walk for about 15 minutes. He stated that he can follow written and spoken instructions. (R. 253). He works well with authority figures. He uses motorized carts, a knee brace, a cane and crutches every day for the past two years.

         In a December 14, 2006 Adult Function Report, Hurt described that during the day he cooks, cleans the house, washes clothes, and helps his son with homework. (R. 261). He bathes his son and readies his clothes. He cares for a walks his dog. (R. 262). When cooking he prepares complete meals; but it takes half an hour to make a sandwich. He stated that he does not drive because he does not own a car. He shops for food, clothes and household items, and it takes him about two hours to do so. He is able to pay bills and count money. When asked to describe any changes in social activities since his injury, he stated “walking-squatting.”

         Medical Records

         Since the issue currently before this Court is whether Plaintiff is entitled to benefits for the time period between January 17, 2006 to November 8, 2008, the evidence in the record from this time period is discussed below.

         Diagnostic Reports

         A June 17, 2006 MRI of Plaintiff's right knee found: 1) partial absence of the body and posterior horn of the medial meniscus with thinning of the articular cartilage; and 2) joint effusion and small popliteal cyst. (R. 307).

         On September 14, 2007, Plaintiff had an x-ray of his right knee. The impression was minimal degenerative arthritis changes and slight chondrocalcinosis (calcium salts found in the cartilage joints). (R. 334). An x-ray of the left knee on the same day found no abnormality. (R. 335).

         Treating Physician Reports and Notes

         Frances Wu, M.D.

         Plaintiff is treated by Frances Wu, M.D. of Somerset Family Practice for knee pain and complaints of hearing loss.

         At a January 17, 2006 visit with Dr. Wu, Plaintiff told the doctor that he had injured his knee at the age of 16, and then subsequently he re-injured it while lifting a refrigerator for his moving job a few years ago. He had an MRI of his knee while in prison, but he refused surgery at that time. He stated that he did not have enough money to buy a brace, but was able to afford a cane. He could only walk to cook lunch for his son. It hurts when he walked to the park outside his house. He stated that Ultram, a prescribed drug, worked only if the dose was at least 150 mg at a time, and that would last most of the day. On examination, Plaintiff's lower right extremity showed tenderness on weight bearing, but had a full range of motion and no effusion (excess accumulation of fluid). (Rr. 371). Dr. Wu's assessment was tear of the medial meniscus. She noted that Plaintiff was still severely limited in mobility due to pain and was using cane.

         On January 17, 2006, Dr. Wu opined in a letter on behalf of Plaintiff, and in support of Plaintiff's application for benefits, that Plaintiff was unable to ambulate without pain, and thus could not participate in training or employment for at least one year. (R. 368).

         At a May 16, 2006 follow up visit with Dr. Wu, Plaintiff's weight was 199 pounds with a body mass index of 30.7. Plaintiff reported that his knees hurt daily, preventing him from going to the park with his son, and that he is unable to cook for more than a few minutes because of pain on standing. He would awaken at night if he turned in bed. Hurt stated that the prescription drug, Tramadol, seemed to relieve pain only for one hour and then the pain would return. When it's raining, the right knee would hurt all day. He reported having surgery on it years ago, and it felt better for a time, but that three years ago it worsened, and he cannot work. He also reported that he can't afford batteries for his hearing aid. He complained of decreased hearing. With the exception of his right knee, the examination was essentially normal. (R. 321). He was only able to extend his right knee to about 80 degrees. His left knee had full range of motion but there was clicking in the mid-range. He was prescribed Tylenol with codeine to augment the Tramadol, which Plaintiff stated was not completely alleviating the pain.

         On May 18, 2006, Dr. Wu completed a Medical Source Statement on behalf of Plaintiff. (Exhibit 3F). She reported that she had treated him approximately one to two times per year since 2001 (R. 304-06). Dr. Wu indicated that Plaintiff's left knee hurt due to overuse to protect his right knee. Her findings included limited right knee flexion to only 80 degrees, due to pain (R. 304). She did not have copies of Plaintiff's MRI, but noted that he was referred for knee x-rays and an orthopedic evaluation. Plaintiff's diagnosis was post-traumatic arthritis of the knees, right worse than left. Dr. Wu concluded that Plaintiff would be able to lift ten pounds occasionally due to difficulty walking; stand and/or walk for less than two hours per day; had no limitation in sitting; but had a limited ability to use left foot controls consistently due to limited knee flexion. (R. 305).

         On June 9, 2006 Dr. Wu reported in another letter in support of Plaintiff's disability that Plaintiff was treating for peptic ulcer disease, tear of the medial meniscus, hearing loss and unspecified arthritis. (R. 359). His medications included Habitrol, and Tylenol with codeine.

         In June 2007, Dr. Wu indicated to Plaintiff that she could no longer treat him over the phone since she had not seen him since ...


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