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Turner v. Astrue

May 10, 2010


The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge


Plaintiff Amos Turner seeks reversal of the decision of Defendant Commissioner of Social Security (the "Commissioner") denying his claim for disability insurance benefits and supplemental security income under Titles II and XVI of the Social Security Act. In the alternative, Plaintiff seeks an order remanding his case to the Social Security Administration ("SSA") for a new administrative hearing. Currently pending before the Court are Plaintiff's [7] Motion for Judgment of Reversal and Defendant's [9] Motion for Judgment of Affirmance. After reviewing the parties' briefs, the administrative record, and the relevant case law, the Court shall DENY Plaintiff's motion to reverse the judgment and GRANT Defendant's motion to affirm the judgment.


A. Legal Framework

To qualify for disability insurance benefits and supplemental security income ("SSI"), a claimant must demonstrate a disability, which is defined by the Social Security Act as an "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 has lasted or can be expected to last for a continuous period of not less than 12 months." See 42 U.S.C. § 416(i)(1); id. § 1382c(a)(3)(A). In addition, a claimant seeking disability or SSI benefits must have a severe impairment that makes him unable to perform past relevant work or any other substantial gainful work that exists in the national economy. See id. § 423(d)(2)(A); 20 C.F.R. § 404.1505(a). Substantial gainful work activity is work activity that involves doing significant physical or mental activities and is the kind of work that is usually done for pay or profit. See 20 C.F.R. § 404.1472.

In making a disability determination, an Administrative Law Judge ("ALJ") is required to use a five-step sequential analysis examining (1) the claimant's recent work activity, (2) the severity and duration of the claimant's impairments, (3) whether the claimant's impairments are medically equivalent to those contained in the Listing of Impairments promulgated by the SSA, (4) the claimant's residual functional capacity and ability to perform past work, and (5) the claimant's ability to perform jobs reasonably available in the national economy. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); see also Brown v. Barnhart, 408 F. Supp. 2d 28, 32 (D.D.C. 2006). At the first step in the analysis, the ALJ must determine whether the claimant is working and whether the work is substantial gainful activity; if so, the claim must be denied. See Brown, 408 F. Supp. 2d at 32. At step two, the ALJ must determine whether the claimant's impairments are severe; if they are not, the claim must be denied. Id. In step three, the ALJ compares the impairments to a listing of impairments that automatically qualify as a disability under the regulations. If the claimant's impairments match those listed, disability is conclusively presumed. Id. If there is no match, the ALJ proceeds to step four and determines whether the claimant has any residual functional capacity to perform his old job. If so, the claim will be denied. Id. If not, the ALJ proceeds to step five and determines whether there is any other gainful work in the national economy that the claimant could perform notwithstanding his disability. Although the claimant bears the burden of proof with respect to the first four steps of the analysis, at step five the burden shifts to the Commissioner to demonstrate that the claimant is able to perform "other work" based on his residual functional capacity, age, education, and past work experience. Butler v. Barnhart, 353 F.3d 992, 997 (D.C. Cir. 2004). If so, the claim must be denied.

B. Factual Background

Plaintiff Amos Turner is a 46-year-old man with an eleventh-grade education. Administrative Record ("AR") at 7, 82.*fn2 From 1983 through 2002, Turner was employed as an auto technician and food server. Id. at 77. Turner was working as an automotive welder installing mufflers when he began to experience pain in his right shoulder and back around March 2002. Id. at 76-77. Turner claims that these injuries to his back and shoulder prevented him from working as of August 26, 2002. Id. at 76-77. Turner's physical problems have been diagnosed as a lumbar disc injury, chronic lumbar radiculopathy, chronic pain syndrome, and chronic internal derangement of his left shoulder. Id. at 7; see Pl.'s Mot. at 2. His symptoms include chronic pain in the back and shoulder, and he suffers from fatigue as a side effect of his narcotic pain medication. AR at 8.

Turner was examined by physicians at Greater Southeast Community Hospital (GSCH). The first record of Turner's injuries appears on September 17, 2002, in the treatment notes of his doctors. See AR at 130, 140-44. These notes indicate that Turner injured his right shoulder by "lifting heavy object [at] work." Id. at 130. The doctors' examination notes from that date also state that "[t]here is no evidence of a fracture, dislocation, or other bony abnormality." Id. at 144. Turner was prescribed anti-inflammatory medication. Id. at 140. In late September 2002, Plaintiff returned to GSCH complaining of lower back, shoulder, and neck pain. See id. at 129, 134-35. His doctor prescribed Percocet during that visit and advised against heavy lifting. Id. at 129. In October 2002, Plaintiff received a series of x-rays. See id. at 131-2-33, 136. After being diagnosed with "traumatic arthritis of the right acromioclavicular joint," Dr. Charles H. Emich performed surgery on Turner's clavicle in December 2002. See id. at 145.

The record indicates that beginning in 2003, Turner was examined and/or treated by several physicians at the Metropolitan Washington Orthopaedic Association & Allied Subspecialties. On March 6, 2003, Turner was examined by Dr. Rida N. Azer. See AR at 154-58. Dr. Azer noted that Turner's "general condition is satisfactory" and that he can "perform activities such as sitting, standing, and walking" but that he should avoid lifting or carrying objects heavier than 30 pounds. Id. at 154-55. Turner also received treatment from Dr. Hampton J. Jackson, Jr., for his lower back pain. On May 19, 2003, Dr. Jackson reported that Turner still complained of significant back pain and pain down the right leg and that an MRI was needed to determine the effective treatment type for him. See AR at 198. Dr. Jackson opined that Turner was "not fit for any gainful employment" because he could neither "stand, walk, or sit" nor "lift, push, or pull." Id. at 198. Dr. Jackson continued to see Turner periodically and reiterated his view that Turner was unfit for work after examinations on September 8, 2003; October 6, 2003; November 3, 2003; March 29, 2004; May 10, 2004; June 7, 2004; October 25, 2004; January 3, 2005; and January 31, 2005; his reports repeatedly observe spinal disc injuries and, at times, recommend a discogram. See id. at 182, 183, 185, 188-90, 195-97, 199. In January 2004, Plaintiff visited Dr. Martin McLaren, a pain management specialist, in order to address the "persistent tenderness and spasm in [his] lower back." Id. at 193.

Turner's shoulder pain was treated by Dr. Melissa Yadao. Dr. Yadao diagnosed a tear in Turner's rotator cuff on February 3, 2004, noting that Turner would be "disabled from performing his duties" until March 2, 2004. AR at 161-62. However, on August 10, 2004, after a review of diagnostic studies, Dr. Yadao wrote that she "d[id] not see a rotator cuff tear." Id. at 202. Dr. Yadao also assessed Turner's residual functional capacity in August, reporting that his injuries created exertional, postural, manipulative, visual, communicative and environmental limitations. Id. at 165.

On April 30, 2005, Turner was involved in an automobile accident which resulted in the termination of his workers' compensation benefits. Id. at 243. According to Dr. Jackson, there was "no permanent additional injury to [Turner's] back as a result of the incident," but Dr. Jackson again stated that Plaintiff was "not fit to work" after a June 2005 evaluation. Id. at 178. On May 16, 2005, Dr. Jackson had observed that Turner's injuries had "gotten a bit better and he does not hurt at all." Id. at 179. Nevertheless, in that same report he recommended surgery for Turner's lumbar disc injury, chronic lumbar radiculopathy, chronic pain syndrome and chronic internal derangement, and advised that Turner "continue on with absolute rest and medication." Id.

C. Turner's Application for Social Security Benefits

Turner filed an application with the Social Security Administration for disability insurance benefits and supplemental security income on November 12, 2002. AR at 16, 70. Turner's disability-benefits application was first denied by letter on April 7, 2003, and again on reconsideration in a September 9, 2004 letter. Id. at 29-30, 36-37; see id. at 37 ("We have determined that your condition is not severe enough to keep you from working.") Turner requested a hearing before an Administrative Law Judge on November 3, 2004. Id. at 41. That hearing was held on August 12, 2005, with ALJ Larry K. Banks presiding. Id. at 63. The ALJ heard testimony from Turner as well as from Leonard Perlman, Ed.D., an impartial vocational expert ("VE"). Id. at16. Turner was represented by counsel at the hearing. Id.

Turner testified that in early 2002, an automotive drill he used for welding got "stuck into the manifold" and "slung [him] around," causing him to break his collarbone and injure his back and shoulder. AR at 239. Between the time of his injury and the time of the hearing, Turner did not return to work because of the "severe pain" and his doctors' recommendations that he not work. Id. Turner testified that Dr. Charles Emich*fn3 performed surgery on his right shoulder in 2002 and sent him to an orthopedist, Dr. Hampton Jackson. Id. at 240. During the hearing, Turner described his symptoms as "a numbness in [his] leg from [his] knee all the way down to [his] foot . . . and burning," which prevent him from walking more than two minutes before he needs to sit down. Id. at 245. Turner also testified that (1) sitting caused a "numbness in [his] butt," (2) bending down caused problems with his back, (3) doctors advised him not to lift anything, (4) persistent pain made it hard for him to sleep and required him "to lie down or rest for several hours throughout the day," and (5) his medication caused memory loss. Id. at 20, 247-50. However, Turner believed he could lift fifteen pounds with his left hand. Id. at 247.

At the hearing, the ALJ presented Turner's occupational profile as a person of the same "age, education and work experience" who could "perform no more than light exertional activity" with "a sit/stand option" and who should avoid climbing, crawling, crouching, shoulder-lifting and reaching with the right arm but could "stoop[] . . . on an occasional basis" and should perform "only simple, routine, unskilled tasks." AR at 256. After hearing this description, vocational expert Leonard Perlman testified that Turner could be an "inspector" or an "office assistant." Id. at 256-57. The ALJ then inquired about sedentary jobs for a person with the above-mentioned limitations, and the VE suggested "security monitor" or "surveillance system monitor", "grader or sorter," "film development assistant,"*fn4 and "order clerk" in the food and beverage industry. Id. at 257-58. The ALJ asked the VE whether his testimony was consistent with the Dictionary of Occupational Titles (U.S. Dep't of Labor, 4th ed. rev. 1991) (hereinafter, "DOT"), a publication that contains descriptions of thousands of jobs that exist in ...

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