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Carr v. Astrue

June 25, 2010

NORMAN G. CARR, PLAINTIFF,
v.
MICHAEL J. ASTRUE, SOCIAL SECURITY ADMINISTRATION COMMISSIONER, DEFENDANT.



The opinion of the court was delivered by: Karen K. Klein United States Magistrate Judge

REPORT AND RECOMMENDATION

Plaintiff Norman G. Carr (hereinafter "Carr," "plaintiff," or "claimant"), who is proceeding pro se, initiated this action under 42 U.S.C. § 405(g) seeking judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying his application for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-433, and denying his application for supplemental security income under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383c. (Tr. 8-19). Both parties have moved for summary judgment. (Doc. #7, Doc. #9).

Summary of Recommendation

The magistrate judge finds the Administrative Law Judge ("ALJ") overlooked a treating physician's opinion in determining Carr's residual functional capacity ("RFC"). (See Tr. 548, 674). It is RECOMMENDED that the decision of the Commissioner be REMANDED for consideration of the evidence.

Background

Carr protectively filed his applications for disability insurance benefits and supplemental security income on July 25, 2006 under Title II of the Social Security Act, 42 U.S.C. §§ 401-433, and under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383c. He alleged a disability onset date of March 17, 2006. (Tr. 159, 126). Carr's applications were denied initially and on reconsideration. He requested a hearing, which was held on February 9, 2009. Carr appeared with his attorney and testified at the hearing. Vocational Expert Dr. David C. Perry also testified. The Administrative Law Judge ("ALJ") issued his decision on March 11, 2009, finding plaintiff was not disabled. (Tr. 8-19). Carr requested review of the ALJ's decision and submitted a letter of contentions from his former attorney to the Appeals Council. (Tr. 266-72). The Appeals Council considered the letter, finding it did not provide a basis for changing the ALJ's decision. (Tr. 1-3). The Appeals Council denied Carr's request for review, making the decision of the ALJ the Commissioner's final decision.

Carr was 51 years old at the time of the hearing. (Tr. 29). He completed high school and some college. (Tr. 216). He has worked as a car salesman, safety officer, security guard, retail stocker, mental health technician, and aircraft production staff worker. (Tr. 206). Carr alleges he is disabled due to depression, back pain, an artificial left elbow, an artificial left hip, spots on his lungs, knee pain, ankle pain, and kidney disease. (Tr. 205).

Legal Standard

Upon review of the pleadings and transcript of the record, the court can affirm, modify, or reverse the decision of the Commissioner, with or without remanding the cause for a rehearing. 42 U.S.C. § 405(g). To affirm the Commissioner's decision, the court must find substantial evidence appearing in the record as a whole supports the decision. See id.; Cruse v. Bowen, 867 F.2d 1183, 1184 (8th Cir. 1989). "This standard requires a more searching review than the substantial evidence standard, and [the court will] take into account record evidence that fairly detracts from the ALJ's decision." Tilley v. Astru, 580 F.3d 675, 679 (8th Cir. 2009) (citing Minor v. Astrue, 574 F.3d 625, 627 (8th Cir. 2009)). The court must "take into consideration the weight of the evidence in the record and apply a balancing test to evidence which is contradictory." Minor, 574 F.3d at 627 (citing Wilson v. Sullivan, 886 F.2d 172, 175 (8th Cir. 1989)) (quoting Jackson v. Bowen, 873 F.2d 1111, 1113 (8th Cir. 1998)). See also, Burress v. Apfel, 141 F.3d 875, 878 (8th Cir. 1998) ("As this court has repeatedly stated, the 'substantial evidence in the record as a whole' standard is not synonymous with the less rigorous 'substantial evidence' standard."); Gavin v. Heckler, 811 F.2d 1195, 1199 (8th Cir. 1987) ("It is not sufficient for the district court to simply say there exists substantial evidence supporting the [Commissioner] and therefore the [Commissioner] must be sustained.").

Discussion

The ALJ employed the familiar five-step test to determine whether Carr was disabled.*fn1

The ALJ determined plaintiff had not engaged in substantial gainful activity since the alleged onset date of disability. (Tr. 10). He found Carr has the following severe impairments which do not meet or equal any listed impairment: "a history of fracture of left hip due to avascular necrosis (status post left total left hip arthroplasty); COPD; left subacromial impingement; status post left elbow arthroplasty following multiple surgeries; and degenerative changes at L4-L5 (20 CFR 404.1521 et seq. and 416.921 et seq.)." (Tr. 10). The ALJ found Carr's coccidiomycosis, right clavicle fracture, and mental impairments including his depression, personality disorder, alcohol dependance, and polysubstance abuse to be non-severe impairments. (Tr. 11-13). He determined plaintiff is capable of performing past relevant work as a car salesman, safety officer, and as a security guard. (Tr. 17).

Plaintiff alleges the ALJ committed the following errors: failing to find his mental impairments and right clavicle fracture are severe impairments, failing to accept as credible his subjective complaints, failing to properly determine his residual functional capacity ("RFC"); and failing to give controlling weight to his treating physicians. Plaintiff also alleges the ALJ erred in ...


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