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Davidson v. Colvin

United States District Court, D. Kansas

May 21, 2015

CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.


KATHRYN H. VRATIL, District Judge.

Richard A. Davidson appeals the final decision of the Commissioner of Social Security to deny disability insurance benefits under Title II of the Social Security Act ("SSA"), 42 U.S.C. §§ 401 et seq., and supplemental security income ("SSI") under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381 et seq. For reasons set forth below, the Court reverses the decision of the Commissioner and remands the case for further proceedings.

I. Procedural Background

On September 4, 2009, plaintiff filed an application with the Social Security Administration for disability insurance benefits and SSI. Plaintiff's application was denied initially and on reconsideration. On December 8, 2011, an administrative law judge ("ALJ") conducted a hearing. See Transcript Of Administrative Record (Doc. #9) filed June 27, 2013 ("Tr.") at 20-44. On December 19, 2011, the ALJ concluded that plaintiff was not under a disability as defined in the SSA and that he was not entitled to benefits. Tr. 12-19. On February 15, 2013, the Appeals Council denied plaintiff's request for review. Tr. 1-6. Plaintiff appeals the final decision of the Commissioner to this Court. See 42 U.S.C. § 405(g), (h).

II. Factual Background

The following is a brief summary of evidence presented to the ALJ.

Plaintiff was born on November 24, 1959. At the time of the hearing, he was 52 years old. Tr. 25. Plaintiff dropped out of high school and passed the General Educational Development test. Id. He last worked in August of 2009 as an electronics test operator. Id. He has also worked as a forklift operator and truck maintenance worker Tr. 26-27.

A. Medical Evidence

In March of 2008, psychologist Avner Stern, Ph.D., performed a disability determination examination of plaintiff. Plaintiff reported that because of a club foot, he had difficulty walking, suffered a lot of pain and drank heavily. Tr. 255. Plaintiff stated that on a daily basis he drank until he passed out, and also used marijuana and pain medication when he could obtain it. Plaintiff reported that he often felt depressed and that six years earlier, he tried to commit suicide after his daughter died. Dr. Stern formed the following diagnostic impressions:

Overall, [plaintiff] is able to perform activities of daily living, to understand forcible [sic] tasks, and to sustain concentration over an eight hour day. He is likely to have difficulty working with others because of his irritability. He has a history of substance abuse which has curtailed his ability to maintain employment. He is currently not being treated and therefore the pattern of losing his job is likely to continue. Because of his substance abuse, he is unable to manage funds without assistance.

Tr. 256.

On December 12, 2009, John S. Bleazard, D.O., examined plaintiff for a disability evaluation. Tr. 282-285. Plaintiff reported that he has a club foot on his left side, has had multiple corrective surgeries and takes hydrocodone as needed for pain. Tr. 282. Plaintiff stated that during the night, he awakes 24 times due to ankle pain and that in the morning, he suffers stiffness in his ankle for two hours. Id. Plaintiff estimated that he can sit for 90 minutes, stand for five minutes and walk for five minutes. Id. Plaintiff reported a history of depression for which he takes Prozac. Id. Dr. Bleazard performed a physical examination and found as follows:

[Plaintiff] has a history of clubbed foot, left side. Today, he walks with a wide-based gait. He is limping slightly to the left, but station is stable. There is atrophy of the left calf as compared to the right with 4/5 remaining strength in the distal left lower extremity. There was some difficulty with orthopedic maneuvers. There is limited range of motion in the left ankle appreciated. * * *
[Plaintiff] reports a history of depression, and was hospitalized at Shawnee Mission Medical in early 2000. This was a reported suicide attempt, but he reports no current ideations. [Plaintiff] is on Prozac management without evidence of delusions, hallucinations, or paranoia. He is oriented x3 and relates well to me. He does handle his own funds.

Tr. 284-85.

On February 2, 2010, medical consultant Harold Keairnes, M.D., completed a physical residual functional capacity ("RFC") assessment form for plaintiff. Tr. 287-93. Regarding exertional limitations, Dr. Keairnes checked boxes which indicated that in an eight-hour workday, plaintiff could stand and/or walk with normal breaks for less than two hours and sit for about six hours. Tr. 288. With regard to plaintiff's ability to push or pull (including operation of hand/foot controls), Dr. Keairnes marked the box stating "limited in lower extremities." Id. In response to a question asking "how and why the evidence supports your conclusions, " including requesting "specific facts upon which your conclusions are based, " Dr. Keairnes stated as follows:

[Plaintiff] has severe pain with standing/walking on his club foot. As a result, lifting should be done only from the seated position. Standing/walking is limited to about one hour in an 8-hour workday on a consistent basis. Pushing/pulling with the left leg is limited to personal needs only.


Regarding postural limitations, Dr. Keairnes marked boxes which indicate that plaintiff may occasionally balance and stoop but never kneel, crouch, crawl or climb ramps, stairs, ladders, ropes or scaffolds. Tr. 290. In response to a request for specific facts upon which his conclusions were based, Dr. Keairnes stated as follows: "These are limited by pain in his club foot. Balancing and stooping are limited to occasionally by the pain, but he should avoid climbing, kneeling, crouching and crawling." Id.

The form asks whether (1) the symptoms are attributable to a medically determinable impairment, (2) the severity or duration of symptoms are disproportionate to the medically determinable impairment and (3) the severity of symptoms are consistent with the total medical and nonmedical evidence. Tr. 291-92. Dr. Keairnes responded as follows:

[Plaintiff] reported problems with standing, walking, kneeling and stair climbing. His last job was sedentary bench work. His previous jobs were temporary so that he had time off between jobs to rest his painful club foot.
The evidence supports [plaintiff's] allegations of symptoms and functional limitations.

Tr. 292.

Under "additional comments, " Dr. Keairnes stated as follows:

[Plaintiff] has a congenital club foot that has experience [sic] multiple corrective operations. He reports that he has pain with standing, walking, kneeling and stair climbing. Apparently the problem has been getting progressively worse although Dr. Appl's medical records from 2007 show visits for pain in his foot and ankle. There were other visits in 2008 and 2009 because of the pain. Dr. Appl has prescribed narcotic analgesics for the pain.
Dr. Bleazard, consultive examiner, found [plaintiff] walking with a wide-based gait and limping to the left. There was atrophy of the left calf. X-rays showed considerable narrowing of IT articulations with mild marginal spurring and eburnation, flattening of the calcaneal inclination at the ankle and a plaque-like calcific focus in the distal tendocalcaneus.
DISCUSSION: [Plaintiff] has severe problems with standing/walking. Other medical problems identified in the evidence, but not contributing to functional limitations include hepatitis C and chronic excessive alcohol use (12 pack of beer daily). * * *
There is no prospect for any significant improvement prior to 8/26/2010 or any time in the future.

Tr. 293.

On April 21, 2010, examiner Monica R. Cohorst completed a "Request for Medical Advice" form which indicated that she was referring plaintiffs's case for review by specialist(s) in "Physical Recon."[1] Tr. 296-97. Specifically, Cohorst marked a box ...

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