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Jemison v. Colvin

United States District Court, S.D. Alabama, Northern Division

August 25, 2014

CHESTER JEMISON, Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.

ORDER

SONJA F. BIVINS, Magistrate Judge.

Plaintiff Chester Jemison (hereinafter "Plaintiff") brings this action seeking judicial review of a final decision of the Commissioner of Social Security denying his claim for a period of disability and disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401, et seq. On April 10, 2014, the parties consented to have the undersigned conduct any and all proceedings in this case. (Doc. 20). Thus, the action was referred to the undersigned to conduct all proceedings and order the entry of judgment in accordance with 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73. Upon careful consideration of the administrative record and the memoranda of the parties, it is hereby ORDERED that the decision of the Commissioner be REVERSED and REMANDED.

I. Procedural History

Plaintiff protectively filed an application for a period of disability and disability insurance benefits income on September 8, 2009. (Doc. 15 at 1; Tr. 105-08). Plaintiff alleges that he has been disabled since June 19, 2009, due to his back injury, carpal tunnel syndrome, feet problems, arthritis in his knees, and high cholesterol. (Tr. 144). Plaintiff's applications were denied and upon timely request, he was granted an administrative hearing before Administrative Law Judge Jerome L. Mumford (hereinafter "ALJ") on May 9, 2011. The hearing was attended by Plaintiff, his attorney, and a vocational expert (hereinafter "VE"). ( Id., at 34). On June 20, 2011, the ALJ issued an unfavorable decision finding that Plaintiff is not disabled. ( Id., at 13-26). The Appeals Council denied Plaintiff's request for review on January 25, 2013. ( Id., at 1-3). Thus, the ALJ's decision dated June 20, 2011, became the final decision of the Commissioner. The parties waived oral argument (Docs. 22, 23), and agree that this case is now ripe for judicial review and is properly before this Court pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).

II. Issues on Appeal

A. Whether the ALJ erred in assigning controlling weight to the opinion of a physical therapist, which is not an "acceptable medical source" pursuant to 20 C.F.R. § 404.1513.

B. Whether the ALJ erred in rejecting the opinions of Plaintiff's treating physician and the consultative examiner.

III. Factual Background

Plaintiff was born on March 9, 1968, and was 44 years of age at the time of his administrative hearing on August 30, 2012. (Tr. 63). Plaintiff testified at the hearing that he has a high school diploma and last worked as a manager for a commercial roofing company in June 2011. According to Plaintiff, he performed roofing and waterproofing duties until June 20, 2011 when he fell 20-30 feet through a roof, hit a metal bar on the way down, and was rendered unconscious. ( Id., at 64-66, 341). As a result of this fall, Plaintiff sustained multiple injuries, including injury to his pelvic, cervical and thoracic spine, liver, spleen, ribs, and scalp. ( Id., at 198). Plaintiff underwent medical and surgical procedures including an IR arteriogram, scalp laceration closure, fiber optic bronchoscopy, pelvic fixation, and CT scans. Plaintiff was hospitalized for 10 days, and then was discharged in a wheelchair to an inpatient rehabilitation center for an additional 13 days. At the time of his release, Plaintiff had progressed from a wheelchair to a walker. ( Id., at 69-70).

Plaintiff testified that he uses a cane to walk and can possibly walk about one-third (1/3) of a football field without his cane, and that he walks "extremely" carefully because his surgeon informed him that if he falls, his screws will rip out and because his pelvic plate cannot be repaired again, he would be rendered permanently unable to walk. ( Id., at 69, 76).

Plaintiff contends that he is unable to work based on a combination of all of the injuries he sustained from the fall and his ongoing pain. ( Id., at 67-68). According to Plaintiff, he cannot perform household chores, such as sweeping and mopping, and is unable to lift a gallon of milk without pain. Plaintiff testified that he is able to fold laundry. ( Id., at 72-73).

In his decision, the ALJ made the following relevant findings:

The claimant has the following severe impairments: history of multiple fall trauma including status post fracture of pelvic ring with open reduction internal fixation of pubic synthesis (pelvic ring); fracture of sacro iliac joint with closed fixation; C-2 vertebral fracture; fracture of T2 vertebral end-plate; obesity ("5/9 at 289 lbs[.]"); and situational depression (20 CFR 404.1520(c)).[1]
The above about severe combination of impairments has been determined by medically acceptable evidence, including signs, symptoms, and laboratory findings... [T]he undersigned finds this medically determinable combination of constitutes more than a slight abnormality, and could reasonably be expected to have caused more than minimal effect on claimant's ability to perform basic work related activities for a continuous period of 12 or more months.
...

( Id., at 12).

The ALJ summarized Plaintiff's medical ...


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