The opinion of the court was delivered by: Jeffrey L. VIKEN United States District Judge
ORDER REVERSING DECISION OF THE COMMISSIONER AND REMANDING CASE FOR CALCULATION AND AWARD OF BENEFITS
Plaintiff filed for Disability Insurance Benefits (DIB) under sections 216 and 223 of Title II of the Social Security Act (the "Act"), 42 U.S.C. §§ 416(I) and 423, and for Supplemental Security Income (SSI) under §§ 1602 and 1614(a)(3)(A) of Title XVI of the Act, 42 U.S.C. § 1381(a), under a protective filing date of December 21, 2005. (AR 10, 103-112).*fn1 The state agency and the Social Security Administration denied plaintiff's applications initially and upon reconsideration. (AR 56-59, 64-66, 69-74).
A hearing de novo was held before an Administrative Law Judge (ALJ) on March 27, 2008. The ALJ issued a decision on April 19, 2008, determining that plaintiff was not disabled within the meaning of the Act. (AR 7-22). The Appeals Council denied plaintiff's request for review on October 29, 2008. (AR 1-3). Plaintiff timely filed his complaint with the court on December 30, 2008. (Docket 1).*fn2 This court has jurisdiction pursuant to 42 U.S.C. § 405(g).
The Commissioner's findings must be upheld if supported by substantial evidence in the record as a whole. 42 U.S.C. § 405(g); Choate v. Barnhart, 457 F.3d 865, 869 (8th Cir. 2006). The court must review the Commissioner's decision to determine if an error of law has been committed. Smith v. Sullivan, 982 F.2d 308, 311 (8th Cir. 1992).
Substantial evidence is less than a preponderance, but enough evidence that a reasonable mind might find it adequate to support the conclusion. Cox v. Barnhart, 471 F.3d 902, 906 (8th Cir. 2006). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support the Commissioner's decision. Choate, at 869 (quoting Ellis v. Barnhart, 392 F.3d 988, 993 (8th Cir. 2005)). The review of a decision to deny disability benefits is "more than an examination of the record for the existence of substantial evidence in support of the Commissioner's decision... (the court must also) take into account whatever in the record fairly detracts from that decision." Reed v. Barnhart, 399 F.3d 917, 920 (8th Cir. 2005) (quoting Haley v. Massanari, 258 F.3d 742, 747 (8th Cir. 2001)).
It is not the role of the court to re-weigh the evidence and, even if this court would have decided the case differently, it cannot reverse the Commissioner's decision if that decision is supported by good reason and based on substantial evidence. Guilliams v. Barnhart, 393 F.3d 798, 801 (8th Cir. 2005). A reviewing court may not reverse the Commissioner's decision "merely because substantial evidence would have supported an opposite decision." Reed v. Barnhart, 399 F.3d 917, 920 (8th Cir. 2005) (quoting Shannon v. Chater, 54 F.3d 484, 486 (8th Cir. 1995)).
The Commissioner's regulations require application of a five-step sequential evaluation process to each claim for disability benefits:
1. whether the claimant is currently engaged in or has been engaged in, substantial gainful activity since the alleged onset date;
2. whether the claimant has a medically determinable impairment that is severe or a combination of impairments that is severe;
3. whether the impairment or combination of impairments meets or medically equals the criteria of an impairment listed at 20 C.F.R. Part 404, Subpart P, Appendix 1 (if so, disability is automatic);
4. whether the claimant has the residual functional capacity (RFC) to perform the requirements of past relevant work; and finally,
5. whether the claimant has the ability to do any other work considering his RFC, age, education and work experience.
20 C.F.R. §§ 404.1520, 416.920 (2008).
The plaintiff has the burden of proof through step four. Matthews v. Eldridged, 424 U.S. 319, 335-36 (1976). At step five the burden shifts to the Administration to establish whether jobs exist in significant numbers in the national economy which the plaintiff is capable of performing. Bowen v. Yuckert, 482 U.S. 137, 107 S.Ct. 2287 (1987). Only if step five is reached, does the ALJ consider the claimant's age, education, and work experience in light of claimant's RFC. McCoy v. Schweiker, 683 F.2d 1138, 1142 (8th Cir. 1982); 20 C.F.R. §§ 404.1520, 416.920 (2008). However, the ultimate burden of persuasion to prove disability remains with the plaintiff. 68 Fed. Reg. 51153, 51155 (August 26, 2003); Harris v. Barnhart, 356 F.3d 926, 931 n.2 (8th Cir. 2004); Bowen, at 146 n.5.
A claimant for Social Security disability benefits has the burden of proving his disability by establishing a physical or mental impairment lasting at least twelve months that prevents him from engaging in any substantial gainful activity. Barnhart v. Walton, 535 U.S. 212, 220 (2002); 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Act defines "physical or mental impairment" as "an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(D).
The ALJ made the following uncontested findings:
1. The claimant met the insured status requirements of the Social Security Act through December 31, 2007. (AR 16).
2. The claimant has not been engaged in substantial gainful activity since January 1, 2003, the alleged onset date. (AR 16).
3. The claimant has a history of cardiovascular disease with myocardial infarction in June 2002 and subsequent cardiac cath with stents, and diabetes, impairments considered to be "severe" under the Social Security Regulations. (AR 16).
6. The claimant is unable to perform any past relevant work. (AR 21).
7. [T]he claimant was fifty-one years old on his alleged onset date, which is defined in the regulations as an individual closely approaching advanced age. (AR 21).
8. The claimant has at least a high school education and is able to communicate in English. (AR 21).
9. The claimant has acquired work skills from past relevant work. (AR 21).
The findings of the ALJ which are disputed by plaintiff and are the subject of the court's review are:
4. The claimant does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1. (AR 17).
5. The claimant retains a residual functional capacity to lift and/or carry 30 pounds occasionally and 10 pounds frequently, stand and/or walk (with normal breaks) for a total of about 2 hours in an 8-hour workday, sit (with normal breaks) for a total of about 6 hours in an 8-hour workday, who requires an ability to alternate between sitting and standing / walking every 30 to 45 minutes if needed, who is unlimited in push and/or pull activities (including operation of hand and/or foot controls) other than as stated above for lift and/or carry, occasionally climb ramps and steps but should not be required to climb ladders, ropes or scaffolds, frequently balance, kneel and crawl, occasionally stoop and crouch, occasionally reach overhead bilaterally, who should not be subject to concentrated exposure to extreme cold or vibration and should not be subjected to hazards of the workplace such as unprotected heights, dangerous machinery and things of that nature, who requires an ability to possess and use diabetic testing equipment and response to those results such as with medication, beverages, drinks, and things of that nature. (AR 18).
10. Considering the claimant's age, education, work experience, and residual functional capacity, the claimant has acquired work skills from past relevant work that are transferable to other occupations with jobs existing in significant numbers in the national economy. (AR 21).
11. The claimant has not been under a disability, as defined in the Social Security Act, from January 1, 2003 through the date of this decision. (AR 22).
FACTUAL BACKGROUND AND DISPUTED ISSUES
Plaintiff was 56 years of age as of December 31, 2007, the date he was last insured for purposes of DIB, and 57 years of age as of April 19, 2008, the date of the Commissioner's final decision for purposes of SSI. (AR 110). He has a twelfth-grade education, plus vocational training as a welder, and past work experience as a cashier, a food sales clerk, and a welder/fitter. (AR 28-29, 151-152, 154, 178, 229, 232). The parties have no dispute with these findings of the ALJ.
Plaintiff is 6 feet in height and weighs around 265 pounds. (AR 16). It is undisputed that he is considered to be "obese." (AR 16). In June of 2002 plaintiff, who is an insulin-controlled diabetic, was hospitalized for a myocardial infarction. (AR 267). As the result of that condition, plaintiff underwent an angioplasty and stenting of his right coronary artery. (AR 264). The ALJ found these conditions to be "severe" under the regulations. (AR 16). The parties have no dispute with this finding of the ALJ.
Additionally, it is undisputed that plaintiff has a diagnosis of "major depression with a generalized anxiety disorder." (AR 17). The ALJ found that these conditions, "considered singly [sic] and in combination" were "not severe" under the regulations. (AR 17). The parties have no dispute with this finding of the ALJ.
Plaintiff has degenerative disc disease of the cervical and lumbar spine and shoulder, and a history of lumbar L5-S1 discectomy, for a herniated disc, in 1994. (AR 16). The ALJ found these conditions to be "not severe" under the Social Security Regulations. (AR 16). Plaintiff disagrees with this finding.
The ALJ concluded, based upon the medical record, that while the "clinical opinions describe the shoulder and disc disease as 'mild,' " plaintiff had a "full range of motion of all joints...." (AR 16). Consequently, the ALJ found there is "no evidence of any limitations in the claimant's ability to perform basic work activities based on these conditions." Without reference to the conditions of plaintiff's shoulders, the ALJ found that plaintiff's "degenerative disc disease and history of lumbar surgery" were "not severe." (AR 16). Against this backdrop, the medical evidence presented at the hearing, which was not specifically addressed or disputed by the ALJ, disclosed the following information.
Dr. Kevin Whittle, M.D., a medical consultant with the State DSS, completed a physical residual functional capacity assessment of plaintiff in April 2006. (AR 233-240). Dr. Whittle concluded (as accepted by the ALJ) plaintiff had the capacity to lift 20 pounds occasionally and 10 pounds frequently; sit, stand, and walk 6 hours in an 8-hour workday. (AR 234). Dr. Whittle further concluded that plaintiff's ability to perform "push and/or pull" activities was "limited in upper extremities." (AR 234). While the ALJ concluded that Dr. Whittle failed to explain this limitation, the record shows otherwise. "Xrays of L spine and R shoulder show degenerative changes... reduced movement of right shoulder, he has markedly diminished extension internal rotation at R shoulder -- see C." (AR 234). Section C of Dr. Whittle's report - Manipulative Limitations - reported "limited reaching in all directions (including overhead)." (AR 236). Additionally, Dr. Whittle reported that among the plaintiff's ADL's (activities of daily living) he "drives manual shift truck with problems at times...." (AR 234). Dr. Whittle then concluded that plaintiff's symptoms were consistent with his medical findings. (AR 238).
Likewise, the ALJ concluded that Dr. William Cook, "concurred with the opinions of Dr. Whittle except disagreed that the claimant had no environmental limitations." (AR 20). Since the ALJ did not specify otherwise, it must be presumed that Dr. Cook supported Dr. Whittle's conclusion that "clinical opinions describe the shoulder (problem)... as 'mild' (with a) "full range of motion of all joints...." which caused no "limitations in the claimant's ability to perform basic work activities.... " (AR 16). Specifically, what Dr. Cook found is that plaintiff "also has pain in the rt. shoulder with some limitation of range of motion. Xray showed some degen.changes of the glenohumeral & AC joints & pain at extremes of motion." (AR 249).
The ALJ went on to decide that likewise Dr. Kristin Jensen, "generally agreed with the opinions of Dr. Whittle" relating to upper extremities manipulation. While Dr. Jensen did generally agree with the opinions of Dr. Whittle on plaintiff's manipulative limitations, what she specifically acknowledged in her report was that "reaching in all directions (including overhead) was limited (in that) R.shoulder limit reaching to occasional." (AP 244). Dr. Jensen acknowledged the March 16, 2006, chiropractic note of Dr. Blickensderfer which found "[r]educed movement ...