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Eric S. Penrod v. Michael J. Astrue

February 22, 2012

ERIC S. PENROD, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF THE UNITED STATES SOCIAL SECURITY ADMINISTRATION, DEFENDANT.



ORDER

The Plaintiff seeks judicial review of the denial of his claim for Social Security disability benefits and Supplemental Security Income payments. The Plaintiff urges that his case be reversed and remanded for further consideration because the ALJ failed to fully develop the record. For the reasons set out herein, the decision is affirmed.

A.

Plaintiff was forty-two years old at the time of his administrative hearing in August 2009. Plaintiff stands 6 feet 1 inch tall and weighed 128 pounds. Plaintiff has a high school education and some college. His past relevant work was as a welder/fabricator and mechanic. Plaintiff applied for disability benefits and Supplemental Security Income payments in August 2007, alleging disability as of August 11, 2007, by reason of injury to his leg and ankle, bilateral carpal tunnel, arthritis in his shoulders, and depression and anxiety. The Plaintiff's applications were denied originally and on reconsideration.

A de novo hearing was conducted by an Administrative Law Judge (ALJ) on August 12, 2009. Plaintiff, who was represented at the hearing, testified that he is unable to work since an automobile accident in August 2007 and another one in September 2007. In the first, he exited a vehicle in a dispute with the driver and his right leg and ankle were run over. In the second, he was hit by a car while in his wheelchair. He again shattered the bones in his right foot. During treatment, he developed MRSA. By his account, he can barely walk on the right leg, maybe a half hour with breaks; he cannot turn the foot to the right and has difficulty walking on uneven pavement. His right leg always feels like it is asleep. He has used a wheelchair and a cane to get around. Plaintiff estimated he could sit for thirty minutes at a time before the foot would bother him and he would have to get up and move about. He keeps the foot elevated most of the time because it swells. On damp, cold days, he is totally miserable and his bones ache all over.

Plaintiff has had bad arthritis in his shoulders for ten to fifteen years. He had surgeries for carpal tunnel in the late 1990's. His hands still go numb. He also suffers depression.

At the time of the hearing, Plaintiff was homeless. He has no money and no health coverage and no longer takes any medications for that reason. His leg pain and depression make it hard to get up and to concentrate on things. His mind wanders. He does not deal with people well nor deal with pressure at all. For a time in the late 1990's, he received disability benefits based on mitral valve prolapse, bad discs in his back, shoulder pain and carpal tunnel, but he went back to work to pay his bills. (R. 723-43).

The ALJ next took testimony from Joyce Courtright, a vocational expert (VE). By her account, Plaintiff's past work was medium to heavy exertional work. The VE testified on a hypothetical question assuming a person of Plaintiff's age, education and work experience, capable of sedentary work with a sit/stand option, and limitations for only occasional posturals, no hazards or climbing, no temperature extremes, only unskilled, low-stress work, one or two step processes, routine and repetitive tasks primarily working with things rather than people, at the entry level. Upon this hypothetical, the VE identified manual assembly and production inspection jobs, and jobs such as lens inserting and lens gauging, as work available in the national and local economy. If such individual could not stay on task due to pain and concentration problems one-third to two-thirds of the day, no work was available. Similarly, if such person had to lay down for an hour in the morning and the afternoon, no work would be available. (R. 740-46).

The ALJ concluded the hearing by noting the record needed to be updated with consultative exams and that Plaintiff should be on the look out for letters from SSA at the Scotia Drive address regarding the scheduling of an orthopedic and a psychological consultative examination for him. (R. 746).

On September 28, 2009, the ALJ determined that while Plaintiff has severe impairments related to alcoholism, depression, PTSD, and fracture of right lower appendage, status-post fixation and infection, he nonetheless had the residual functional capacity to perform a limited range of sedentary exertional work. Upon this finding and the testimony of the VE, the ALJ concluded that Plaintiff could perform jobs available to him in the local and national economy. Upon this conclusion, the Plaintiff was determined to be not disabled. (R. 15-27). The Appeals Council considered additional argument and submissions and denied Plaintiff's request for review.

B.

Consideration of the Plaintiff's claims is governed by certain principles. In order to be entitled to Social Security disability benefits and Supplemental Security Income payments, a claimant must be unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which . . . has lasted or can be expected to last for a continuous period of not less than 12 months. . . ." 42 U.S.C. § 423(d)(1)(A). A "physical or mental impairment," under the terms of the Act, is one that "results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." Id. at § 423(d)(3).

A determination by the Commissioner that a claimant is not disabled must be upheld if it is supported by substantial evidence and comports with applicable legal standards. See id. at § 405(g). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996). The Commissioner must apply the correct law and demonstrate that he has done so. While the court reviews the Commissioner's decision with deference to the factual findings, no such deference is given to the legal conclusions. Keeton v. Dep't of Health & Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994) (citing Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th Cir. 1991)).

It is, moreover, the function of the Commissioner, and not the courts, to resolve conflicts in the evidence and to assess the credibility of the witnesses. Grant v. Richardson, 445 F.2d 656 (5th Cir. 1971). Similarly, it is the responsibility of the Commissioner to draw inferences from the evidence, and those inferences are not to be overturned if they are supported by substantial evidence. Celebrezze v. O'Brient, 323 F.2d 989, 990 (5th Cir. 1963). Therefore, in determining whether the Commissioner's decision is supported by substantial evidence, the court is not to re-weigh the evidence, but is limited to determining whether the record, as a whole, contains sufficient evidence to permit a reasonable mind to conclude that the claimant is not disabled. Miles, 84 F.3d at 1400; Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983).

In sum, the scope of review is limited to determining whether the findings of the Commissioner are supported by substantial evidence and whether the correct legal standards were applied. 42 U.S.C. § 405(g); Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th ...


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