United States District Court, D. New Jersey
MEMORANDUM AND ORDER
G. SHERIDAN, U.S.D.J.
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.
procedural history for this case is lengthy, but suffice it
to say it has been remanded on several occasions for
additional findings of facts.
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).
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
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 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).
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.
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
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).
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.
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.”
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.
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).
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).
Physician Reports and Notes
is treated by Frances Wu, M.D. of Somerset Family Practice
for knee pain and complaints of hearing loss.
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.
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).
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.
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).
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.
2007, Dr. Wu indicated to Plaintiff that she could no longer
treat him over the phone since she had not seen him since ...