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Ward v. Colvin

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

June 29, 2015

JAMES WARD, Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.

MEMORANDUM OPINION AND ORDER

BERT W. MILLING, Jr., Magistrate Judge.

In this action under 42 U.S.C. §§ 405(g) and 1383(c)(3), Plaintiff seeks judicial review of an adverse social security ruling denying a claim for disability insurance benefits and Supplemental Security Income (hereinafter SSI ) (Docs. 1, 13). The parties filed written consent and this action has been referred to the undersigned Magistrate Judge to conduct all proceedings and order judgment in accordance with 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73 ( see Doc. 19). Oral argument was heard on June 29, 2015. After considering the administrative record, the memoranda of the parties, and oral argument, it is ORDERED that the decision of the Commissioner be REVERSED and that this action be REMANDED for further administrative procedures consistent with this Court's Order.

This Court is not free to reweigh the evidence or substitute its judgment for that of the Secretary of Health and Human Services, Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983), which must be supported by substantial evidence. Richardson v. Perales, 402 U.S. 389, 401 (1971). The substantial evidence test requires "that the decision under review be supported by evidence sufficient to justify a reasoning mind in accepting it; it is more than a scintilla, but less than a preponderance." Brady v. Heckler, 724 F.2d 914, 918 (11th Cir. 1984), quoting Jones v. Schweiker, 551 F.Supp. 205 (D. Md. 1982).

At the time of the administrative hearing, Ward was twenty-nine years old, had completed an eleventh-grade education (Tr. 63), and had previous work experience as a milk receiver for a tank truck, net fisherman, and a forklift operator (Tr. 78). In claiming benefits, Plaintiff alleges disability due to a closed head injury, right hand and shoulder injuries, and a depressive disorder (Doc. 12).

The Plaintiff filed applications for disability benefits and SSI on June 14, 2010, asserting a disability onset date of May 14, 2010 (Tr. 160-72; see Tr. 15). Benefits were denied following a hearing by an Administrative Law Judge (ALJ) who determined that although he could not return to his past relevant work, there were specific medium-exertion jobs that he could perform (Tr. 15-25). Plaintiff requested review of the hearing decision (Tr. 7-11) by the Appeals Council, but it was denied (Tr. 1-5).

Plaintiff claims that the opinion of the ALJ is not supported by substantial evidence. Specifically, Ward alleges that: (1) The ALJ did not properly consider his pain and limitations; (2) the ALJ improperly rejected the opinions of examining physicians; (3) the ALJ did not state what weight he gave certain evidence; (4) the ALJ did not properly develop the record; and (5) the Appeals Council failed to properly review evidence submitted to it (Doc. 13). Defendant has responded to- and denies-these claims (Doc. 14). The relevant evidence of record follows.

On January 21, 2006, Ward went to the DCH Regional Medical Center ER for treatment of multiple scalp lacerations after being pistol-whipped, resulting in a closed head injury (Tr. 274-87). Plaintiff also had moderate tenderness in the right wrist and right proximal forearm. CT's of the head and cervical spine were normal. There were no significant bone abnormalities in the right forearm.

On June 4, 2010, Plaintiff was treated at Uniontown Health Center for a snake bite on his right leg (Tr. 291-95).

On September 24, 2010, Dr. John C. Simmons examined Ward whose chief complaint was memory loss and poor concentration as a result of his previous pistol-whipping and concussion; he also experienced right hand pain and swelling, right shoulder and neck pains, and chronic head pain (Tr. 297-301). Simmons noted swelling in the right hand and wrist as well as decreased grip strength and dexterity; he also had decreased range of motion (hereinafter ROM ) in the right wrist, arm, and forearm. It was the Doctor's opinion that Ward "would have difficulty performing work related physical activities using right arm or hand including activities such as lifting, carrying, etc. [Plaintiff] would also have difficulty with any work requiring manual dexterity using right hand. Also, any work requiring use of his memory would be difficult" (Tr. 299). Simmons completed an ROM chart showing the diminished capacities (Tr. 300-01).

On October 29, 2010, Dr. E. Russell March, Jr. reviewed Plaintiff's medical record and, without benefit of examination, determined that he could lift and/or carry fifty pounds occasionally and twenty-five pounds frequently; he could sit and stand/walk for six hours each during an eight-hour day (Tr. 304-11). Ward would be limited in operating hand controls. Ward could climb a ladder, rope, or scaffolds only occasionally but could frequently climb a ramp or stairs as well as balance, stoop, kneel, crouch, and crawl. Though Plaintiff would be limited in reaching or with gross manipulation, fine manipulation was not a problem.

On November 15, 2010, Psychologist Richard S. Reynolds examined Ward who provided his own psychological and medical history (Tr. 313-15). The Psychologist noted Plaintiff was oriented in four spheres; mood was "down" and affect was mildly dysthymic. Thought content was logical and associations were tight; recent and remote memory, judgment, insight and decision-making abilities were intact. It was Reynolds's opinion that Plaintiff's "ability to understand, carryout, to remember instructions, and to respond appropriately to supervision, coworkers, work pressures in a work setting appear intact. Mr. Ward may be experiencing some mild depression secondary to medical issues, however, [sic] there is no significant psychological impairment noted or reported by the claimant" (Tr. 315).

On December 20, 2010, Psychologist Joanna Koulianos reviewed Plaintiff's medical record and, without benefit of examination, completed a Psychiatric Review Technique Form indicating that Plaintiff suffered from an Adjustment Disorder with a depressed mood (Tr. 316-29). The Psychologist further indicated that Ward would have only mild limitations in his daily activities, maintaining social functioning, and in maintaining concentration, persistence, or pace.

On September 7, 2011, Psychologist Nina E. Tocci examined Plaintiff, finding him oriented in four spheres; he had a good fund of information and comprehension, but his ability to abstract was impaired (Tr. 334-37). Ward's thought content was logical and appropriate to mood and circumstances. He rated his pain as ten, daily, on a ten-point scale. Plaintiff had some insight, fair social judgment, and appeared to be functioning within the borderline range of intellectual ability. Tocci diagnosed him to have a Depressive Disorder, NOS and determined he had only a poor prognosis; she indicated that he currently had-and had had for a year-a GAF of 60.[1] The Psychologist stated that she had reviewed the record in reaching her conclusions and recommended that Ward be evaluated by a neurologist as he had "described symptoms that are consistent with [Traumatic Brain Injury) and other symptoms" (Tr. 336).

On September 12, 2011, Dr. Stephen J. Robidoux examined Plaintiff for complaints of right hand and head swelling; he was oriented in three spheres with intact past and present memory (Tr. 339-43). Ward had full ROM throughout his body; the examination was normal. Robidoux indicated that there was no explanation for Plaintiff's assertion that he could not feel fine touch on his entire right arm. The Doctor said he had no limitations in "sitting, standing, walking, running, lifting, carrying, pushing, pulling, climbing, squatting, handling objects, using hand and foot controls, talking, listening and travel" (Tr. 342-43).

On September 29, 2011, Psychologist Donald E. Hinton reviewed Ward's medical record and, without benefit of examination, completed a Psychiatric Review Technique Form indicating that Plaintiff had been diagnosed to have had a closed head injury and a depressive disorder (Tr. 344-57). Hinton determined that he had mild limitations in his daily activities and moderate limitations in maintaining social functioning and in maintaining concentration, persistence, or pace; Ward had never had an episode of decompensation of extended duration. On the same date, the Psychologist completed a Mental Residual Functional Capacity Assessment that Plaintiff would be moderately limited in his ability to understand, remember, and carry out detailed instructions and in maintaining attention and concentration for extended periods (Tr. 358-61). Likewise, Ward would be moderately limited in interacting appropriately with the general public, accepting instructions and responding appropriately to criticism from supervisors, and responding appropriately to changes in the work setting. Hinton also found Plaintiff capable of doing the following:

A) Able to understand and recall simple instructions, not detailed.
B) Able to carry out simple tasks adequate to complete 8 hr work days provided customary breaks are given. Can maintain attention and ...

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