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Kenneth Freel v. Michael J. Astrue

February 27, 2012


The opinion of the court was delivered by: Monte C. Richardson United States Magistrate Judge


This cause is before the Court on Plaintiff's appeal of an administrative decision denying his application for Social Security benefits. The Court has reviewed the record, the briefs, and the applicable law. For the reasons set forth herein, the Commissioner's decision is REVERSED and REMANDED.


Plaintiff filed an application for disability insurance benefits ("DIB") on February 25, 2008, alleging an inability to work since November 23, 2007. (Tr. 123-27). The Social Security Administration ("SSA") denied the application initially and again upon reconsideration. (Tr. 68-69, 77-78). Plaintiff then requested and received a hearing before an Administrative Law Judge ("the ALJ") on October 7, 2008. (Tr. 10, 79). On December 16, 2009, the ALJ issued a decision finding Plaintiff was not disabled. (Tr. 7-18). Plaintiff requested review of the ALJ's decision by the Appeals Council, but the request was denied. (Tr. 1). Plaintiff timely filed his Complaint in the U.S. District Court on January 20, 2010. (Tr. 4).


A. Basis of Claimed Disability

Plaintiff claimed to be disabled due to back pain, neck pain, anxiety, and depression since November 23, 2007. ( Tr. 41, 123).

B. Summary of Evidence Before the ALJ

Plaintiff was forty-eight years of age on the date of the hearing. (Tr. 31). He has a limited education, but is able to read, write, and communicate in English. (Tr. 31, 145, 150). He has past relevant work experience as a crane operator, rigger, and groundskeeper. (Tr. 36-39).

In September 2000, Plaintiff was diagnosed with "degenerative disc disease at C5-6 with mild disc narrowing and spurring anteriorly and posteriorly." (Tr. 197). He also had "mild cervical scoliosis convex right and . . . uncovertebral hypertrophy at the C5-6 level on the left side that cause[d] minimal impingement on the left C5-6 neuroforamen." Id. Plaintiff testified that on November 23, 2007, he was bending over his bathroom sink when "something pulled in [his] back." (Tr. 48). Plaintiff was admitted to the Orange Park Medical Center and diagnosed with "acute back sprain and spasm," and "grade I anterolisthesis of the L5 with bilateral parous defect." (Tr. 189).

In October 2004, Plaintiff visited Dr. Fetchero. (Tr. 260). He returned to Dr. Fetchero on an "as needed" basis through 2009. (Tr. 260, 294-97). Dr. Fetchero opined Plaintiff suffered from back pain, neck pain, neuropathy, radiculopathy, and paresthesias in the feet. (Tr. 260). Dr. Fetchero's notes indicate Plaintiff required an MRI, but Plaintiff was unable to obtain the test due to a lack of insurance. (Tr. 251). In July 2008, Dr. Fetchero completed a physical residual functional capacity ("RFC") questionnaire for Plaintiff. (Tr. 260). Dr. Fetchero noted Plaintiff had not improved in more than seven months and was only able to sit for less than two hours, stand for less than two hours, and walk for less than two hours in an eight-hour workday. (Tr. 262). He further opined Plaintiff could only sit or stand for ten minutes before needing to change positions and occasionally required the assistance of a cane. (Tr. 262-63). Dr. Fetchero determined Plaintiff could rarely lift items weighing ten pounds or less and could never lift items heavier than ten pounds. (Tr. 263). Dr. Fetchero further opined Plaintiff was likely to be absent from work more than four days per month as a result of his impairments. (Tr. 265). Finally, Dr. Fetchero suggested Plaintiff's pain would frequently interfere with his attention and concentration, but Plaintiff could tolerate moderate work stress. (Tr. 261).

Dr. Choisser examined Plaintiff in May 2008. (Tr. 209). He noted Plaintiff had "good bony alignment" in his lumbar spine, but "some narrowing of disc space" and "arthritic changes" in the cervical spine. (Tr. 210). Dr. Choisser opined Plaintiff suffered moderate muscle spasms along the lumbar spine as well as traumatic disc disease and osteoarthritis of the lumbar and cervical spine with insufficient medical work-up. Id. Dr. Choisser also noted Plaintiff could walk for thirty feet without the aid of an assistive device, but "really need[ed] to have an MRI and possibly other diagnostic studies . . . in order to better evaluate his problems." (Tr. 209, 210).

In June 2008, Dr. Dianna Ahmad diagnosed Plaintiff with degenerative disc disease of the lumbar spine and osteoarthritis in the cervical spine. (Tr. 235, 242). Dr. Ahmad opined Plaintiff could occasionally lift twenty pounds, frequently lift ten pounds, and could stand, walk, or sit for six hours in an eight-hour workday. (Tr. 236).

In September 2008, Dr. Puestow diagnosed Plaintiff with lumbar spondylolisthesis and affective/mood disorder. (Tr. 66-67). Dr. Puestow indicated Plaintiff could occasionally lift twenty pounds and frequently lift ten pounds. (Tr. 282). Dr. Puestow opined Plaintiff could stand or walk for six hours and sit for six hours in an eight-hour workday. (Tr. 282).

In May 2008, Dr. Knox, a consultative psychologist, evaluated Plaintiff. (Tr. 214). Dr. Knox opined Plaintiff suffered mild depression and had a Global Assessment of Functioning of 60. (Tr. 218). Dr. Knox also noted there were no behavioral indications of anxiety, depression, or thought disorder at the time of the interview. (Tr. 217). Dr. Knox went on to opine Plaintiff had ...

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