United States District Court, D. Colorado
HARRY M. CROSBY, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
ORDER REVERSING ADMINISTRATIVE LAW JUDGE'S DECISION AND REMANDING TO THE COMMISSIONER
RAYMOND P. MOORE, District Judge.
THIS MATTER comes before the Court on Plaintiff Harry M. Crosby's ("Plaintiff") request for judicial review pursuant to 42 U.S.C. § 405(g). Plaintiff challenges the final decision of Defendant, the Commissioner of Social Security ("Commissioner"). The administrative law judge ("ALJ") ruled Plaintiff was not disabled within the meaning of the Social Security Act ("Act"). For the reasons set forth below, the ALJ's denial of benefits is reversed and the case is remanded to the Commissioner for rehearing.
Plaintiff applied for disability insurance benefits (DIB) in March 2004, alleging disability beginning in March 1999 (Admin. Record ("Tr.") at 349). After his application was initially denied, Plaintiff requested a hearing before an ALJ which was held in March 2006 (Tr. 26-49, 306, 323). Following the hearing, the ALJ issued a decision finding Plaintiff not disabled (Tr. 309-17). Plaintiff requested review of that decision by the Appeals Council, which remanded the case to an ALJ for a new hearing (Tr. 338-43). A hearing was held in January 2009 before a different ALJ (Tr. 79-111). Before that second hearing, Plaintiff sent the ALJ a letter amending his alleged onset date to March 2002, and requesting that the ALJ reopen a prior DIB application that had been filed in September 2001 (Tr. 473-74). In February 2009, the new ALJ issued a decision in which he reopened the prior application (with the new alleged onset date of March 2002), but found that Plaintiff was not disabled (Tr. 26-40). Plaintiff timely requested judicial review before this Court.
A. Background and Medical Evidence
Born in 1955, Plaintiff was 49 years old in December 2004, his date last insured (Tr. 27, 60). Plaintiff had worked as a truck driver and an electrician (Tr. 170). Plaintiff was injured in a 1999 work accident which caused chronic lower back pain (Tr. 511). Such pain restricts his ability to sit, walk or stand (Tr. 390). Plaintiff underwent a laminectomy, and was considered at maximum medical improvement for his work related injury as of August 1, 2001 (Tr. 228). Despite surgery, his back pain did not improve ( id ).
Plaintiff presented before William Shaw, M.D., one of his treating physicians, on February 1, 2002. Dr. Shaw diagnosed Plaintiff with "Chronic lumbar radicular syndrome and failed back syndrome" (Tr. 485). On July 22, 2003, Dr. Shaw provided a Medical Source Statement of Ability to do Work Related Activities. In that assessment, Dr. Shaw indicated that Plaintiff cannot operate a motor vehicle due to the prolonged sitting required (Tr. 301-304). He stated that Plaintiff can sit "1 hour at a time, 4-5 hours in an 8 hour work day" (needing a "5 to 7" minutes break after each hour of sitting); can stand "0-1 hour at a time, 2-3 hours in an 8 hour day"; and can walk "0 to 1 hour at a time, 2 to 3 hours in an 8 hour day" (Tr. 301-305; emphasis added).
In February 2002, Rita Starritt, M.D., performed a consultative exam. A lumbosacral spine film was performed and reviewed by Dr. Starritt showing "loss of disc space at the L4-L5, consistent with a fusion" (Tr. 300). Dr. Starritt further stated, inter alia, that Plaintiff "cannot crawl due to his back pain" and "when he sits he needs to be able to change position every half-hour or so" ( id ).
On March 20, 2002, Plaintiff received services through the Colorado Division of Vocational Rehabilitation from Christy Jabour, M.D. (Tr. 531). Dr. Jabour performed a vocational assessment which stated: "The fact that he cannot sit for long periods of time, even to a certain extent, excludes the possibility of any sedentary-type work." Dr. Jabour limited Plaintiff's sitting to "10-15 minutes at a time" (Tr. 531-537).
On June 8, 2004, Paul Shadler, M.D., performed a consultative exam which indicated that Plaintiff can sit for "4-6 hours" in an eight hour day (Tr. 514-5). The report does not indicate how long he can sit at one time. Dr. Shadler does note that during the examination, "after being seated for 5-10 minutes, Plaintiff got up to stretch" (Tr. 512).
On April 7, 2006, Plaintiff underwent a Functional Capacities Evaluation by Doris Shriver, OTR. Extensive testing was performed, and Ms. Shriver concluded that Plaintiff is limited to ten minutes sitting at one time, two hours in an eight hour day. According to Ms. Shriver, Plaintiff is unable to sustain an eight hour work day, being able to perform a total of five hours sit/stand/walk combined (Tr. 444-457).
B. The ALJ Decision
The ALJ issued his decision on February 27, 2009 (Tr. 26-40). In reaching his conclusion, the ALJ followed the five-step sequential evaluation process for evaluating disability claims (Tr. 27-28). See 20 C.F.R. § 404.1520(a)(4). The ALJ found that Plaintiff had the following severe impairment: degenerative disc disease of the lumbar spine (Tr. 29). The ALJ further found Plaintiff's Residual Functional Capacity ("RFC") to be as follows:
[T]he claimant had the residual functional capacity to perform all work activities with the following limitations: he could lift and carry up to 10 pounds; sit 1 hour at a time for a total of 5 hours in an 8-hour work day; stand 1 hour at a time for a total of 3 hours in an 8-hour work day; and walk 1 hour at a time for a total of 3 hours in an 8-hour work day. The claimant ...