Re: John Doe; SSN# XXX-XX-XXXX (All private information is fictional and dates have been changed.)

Dear Appeals Council Members:

As your records will reflect, this office represents John Doe in his application for Social Security disability benefits. A hearing was held on January 21, 2009 in San Juan, California before the Honorable Jane Doe. The claimant received a partially favorable decision on March 17, 2009, and a timely Request for Review was filed with your office on March 30, 2009.

 

Appeals Council

Social Security Administration

Office of Disability Adjudication and Review

 

As a preliminary matter, this case is an appeal of a partially favorable decision rendered at the hearing stage on March 12, 2009, which grants disability from July 15, 2005 to March 1, 2008. The claimant’s date of application is November 26, 2009. We are appealing for a continuation of benefits.

The claimant was 37 years in age at the date of onset. Currently, the claimant is 41 years in age and has education consisting of a high school GED. Mr. Doe has past relevant work experience as a general laborer for the City of Walla-Walla, as a tractor-trailer driver, and as a maintenance worker for the Orange Valley airport; becoming disabled on October 11, 2004, as a result of degenerative disc disease at the area of L5-S1, which is status-post a lumbar diskectomy on March 10, 2005; post diskectomy syndrome; failed back syndrome, which is status-post three back surgeries, and the claimant is further disabled due to chronic pain. The claimant underwent back surgery to remove hardware on December 16, 2007. The claimant is also scheduled to undergo a spinal cord stimulator in the near future. 

The Administrative Law Judge (ALJ) finds “from July 15, 2005 through March 1, 2008, the period which the claimant was disabled, the severity of the claimant’s lumbar spine disorder equaled the criteria of 1.04 (A) of 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. 404.1520 (d) and 416.920 (d)” (Decision pg. 5). ALJ Doe further states “beginning on March 2, 2008, the claimant has not had an impairment or combination of impairments that meets or medically equals one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. 404.1594 (f) (2) and 416.994 (b) (5) (i)” (Decision pg. 7).

ALJ Doe states” after careful consideration of the entire record, the undersigned finds that, beginning on March 2, 2008, the claimant has had the residual functional capacity to perform sedentary work as defined in 20 C.F.R. 404.1567 (a) and 416.967 (a). Specifically, the claimant can lift and/or carry 10 pounds occasionally and less than 10 pounds frequently; he could stand and/or walk two hours out of an eight-hour work day, 30 minutes at a time and can sit at least six hours out of an eight-hour work day, one hour at a time, changing positions briefly each hour for a few minutes; he can occasionally bend and stoop; he is precluded from kneeling, crawling, vibrations, working at unprotected heights, or climbing ladders, scaffolds or ropes; and he can occasionally climb stairs or ramps.” (Decision pg. 7).

Based on the assessed residual functional capacity, the ALJ determined that the claimant is unable to perform any past relevant work (Decision pg. 10). ALJ Doe asked the vocational expert (VE) to clarify whether jobs exist in the national economy for an individual with the claimant’s age, education, work experience, and residual functional capacity. ALJ Doe relied on VE testimony to affirm the claimant could perform jobs existing in significant numbers in the national economy. The ALJ relied on such VE testimony to provide such jobs for the claimant as a food and beverage order clerk, DOT 209.567-014; a perimutual ticket checker, DOT 219.587-010; a telephone quotation clerk, DOT 237.367-046 (Decision pg. 11). With these findings, we most strongly disagree.

The decision rendered by ALJ Doe is replete with legal errors. We contend the claimant suffers from exertional and non-exertional limitations; moreover, we vie this individual is disabled at Step Five of the Sequential Analysis due to his inability to maintain any substantial gainful activity. As an alternative argument, we contend the claimant continues to meet Social Security Listing 1.04(A). We request that the favorable portion of the decision be affirmed, and we further request the unfavorable portion of the decision vacated and reversed for an award of benefits.

The ALJ Failed to Provide a Proper Credibility Assessment.

Pursuant to 20 C.F.R. § 404.1529 (c) and SSR’s 96-4p and 96-7p, the ALJ must consider all symptoms and the extent to which the symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence. The determination or decision must contain specific reasons for the finding on credibility, supported by the evidence in the case record, and must be sufficiently specific to make clear to the individual and to any subsequent reviewers the weight the adjudicator gave to the individual’s statements and the reasons for that weight.” ALJ Doe failed to follow these regulations and rulings regarding the claimant’s credibility; moreover, it is confusing why the ALJ chooses to address some medical records in the claimant’s case, but completely ignores other records in such case.

For example, the ALJ states “there is no evidence of anything but very conservative treatment since the claimant’s surgery, the hardware removal in December 2007. The claimant has not had physical therapy, acupuncture, tens unit, or any other modalities of treatment for pain, except for medication. As of March 2, 2008, the claimant is only considered credible to the extent that he can do the work described herein. The claimant’s severe pain symptoms are not supported by the gap in the treatment record or the very conservative treatment of his pain complaints. There is nothing in the medical records to support the claimant’s prescribed need for a cane or brace.” (Decision pg. 9).

However, according to a narrative report from the claimant’s orthopedic surgeon, Puri Jack, who completed both of the claimant’s surgeries during 2007, indicates the claimant will begin physical therapy during August 2007.  During April 2008, the claimant presented to the Victor Valley Clinical Hospital for persistent back pain, which was joined by a burning sensation which radiated to the left leg. The claimant also had a decreased range of motion coupled with muscle spasms; these symptoms were present for two weeks prior to the claimant presenting himself at the afore-mentioned hospital. The claimant was observed experiencing pain while attempting to lift his leg 30 degrees. During this time, the claimant was wearing a back brace and using a cane for ambulation; additionally, the claimant continues to use a cane. 

Then, on September 26, 2008, the claimant was examined by Linda Cha-Che, M.D., Family Practice and by Andrew Thenly, M.D., Pain Management. During the exam, the claimant produced a positive Fabre sign on his left and right side. Moreover, both of these afore-referenced doctors state the claimant has participated in physical therapy; additionally, Dr. Thenly provides a diagnosis of failed back syndrome for the claimant. Furthermore, the claimant is noted as having a decreased range of motion with his flexion, extension, and with his left and right rotation. The claimant is noted as having severe spine tenderness at the area of L3-S1; moderate paravertebral tenderness at the area of L4-S1; mild to moderate pain with his sacroiliac joint tenderness on the right side and moderate to severe pain with his sacroiliac joint tenderness on the left side. 

Moreover, ALJ Doe is in error by using some of the claimant’s medical evidence, but completely ignoring other medical evidence; in addition, the ALJ may not arbitrarily substitute his own opinion for a competent medical opinion. Jones v. Apfel, 2000 WL87288, * 4 (C.D. Cal. 2000). If the decision cannot be reversed due to this error, then, the case warrants remand to further clarify these afore-referenced discrepancies.

 

(All names and places have been changed)