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ZIMMERMAN v. MASSANARI

June 28, 2002

KIMOTHY ZIMMERMAN, PLAINTIFF,
V.
LARRY G. MASSANARI, ACTING COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Larimer, Chief Judge.

  DECISION AND ORDER

INTRODUCTION

This is an action brought pursuant to 42 U.S.C. § 405(g) and 1383(c)(3) to review the final determination of the Commissioner of Social Security ("the Commissioner") that plaintiff was not disabled under the Social Security Act, and therefore, was not entitled to disability benefits. Plaintiff has moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c), or, in the alternative, to remand the case for a new hearing. The Commissioner cross-moves for an order remanding the case for rehearing pursuant to the fourth sentence of 42 U.S.C. § 405(g) because the Administrative Law Judge ("ALJ") failed to apply the correct legal standards, failed to assess the opinions of Drs. Lasser and Canfield, and failed to obtain additional information from Dr. Tahir. For the reasons outlined below, the Court finds that the Commissioner's decision was not supported by substantial evidence and accordingly remands the matter for further development of the administrative record.

PROCEDURAL BACKGROUND

Plaintiff Kimothy Zimmerman ("Zimmerman") applied for Social Security Disability and SSI benefits on August 6, 1996. (Tr. 98).*fn1 His application was denied initially and on reconsideration. (Tr. 64, 71). Plaintiff requested a hearing before an ALJ, and a hearing was held in the case on November 10, 1998. (Tr. 28-49). The ALJ decided that plaintiff was not entitled to benefits and denied Zimmerman's claim. (Tr. 19-26). The ALJ's decision became the Commissioner's final decision on February 16, 2001 when the Appeals Council denied plaintiffs request for review. (Tr. 7). Plaintiff commenced this action on April 4, 2001, seeking review of the Commissioner's final decision pursuant to 42 U.S.C. § 405(g).

FACTUAL BACKGROUND

Zimmerman was born on August 26, 1962. (Tr. 98). Since slipping on ice in 1987, he has suffered consistent lower back pain. (Tr. 198). In 1990, he slipped and fell on his right shoulder, and has since had a decreased range of motion in the right arm. (Tr. 243). Zimmerman has a high school education. (Tr. 128). He formerly worked as a vineyard laborer, auto mechanic and security guard. (Tr. 133).

The medical records contained in the file delineate Zimmerman's complaints of back and neck pain, stemming from his 1987 fall. (Tr. 198, 231, 242). Most of Zimmerman's medical care has been provided by his primary care physician, Azhar Tahir, M.D. Zimmerman also began treatment with orthopedic surgeon Steven Lasser, M.D. in March, 1996. (Tr. 201).

Dr. Tahir's office notes indicate that Zimmerman suffers from osteoarthritis, obesity, gastroesophagel reflux disease ("GERD"), generalized edema and hypertension. (Tr. 267). In 1993, Tahir noted that Zimmerman had problems with prolonged walking and lifting. (Tr. 208). In 1994, Zimmerman's condition had deteriorated to "chronic back and knee pain" (Id.), and since then he has been described as suffering from "continuing back pain." (Tr. 225, 227, 228). Between December, 1997 and September, 1998, Tahir noted Zimmerman's ability to lift and carry dropped from 15 pounds (Tr. 267) to 10 pounds (Tr. 321) to 5 pounds (Tr. 279). He also repeatedly noted that Zimmerman could walk less than 2 hours per day and was able to sit for less than 6 hours per day. (Tr. 268, 321, 279). Zimmerman lacks the normal ability to crouch, squat or climb (Tr. 302, 303, 321), and physical therapy was not recommended because it increased Zimmerman's pain. (Tr. 279). By July, 1999, Dr. Tahir was of the opinion that Zimmerman was "totally disabled." (Tr. 300).

In 1996, Dr. Lasser indicated that Zimmerman suffered from back pain secondary to lumbar disc disease. (Tr. 201). He also noted diffuse tenderness of the lower back near L5-S1 and a painful range of back motion. (Id.). An MRI taken in April, 1996 revealed degenerative changes of the T11-12, L4-5 and L5-S1 intervertebral discs with some mild posterior annular tears. (Id.). Dr. Lasser was of the opinion that "from a practical standpoint, [Zimmerman] is unable to work in any capacity." (Tr. 202).

A consultative examiner for the Commissioner, Wesley Canfield, M.D., noted that there was some hypesthesia over the dorsum of the left foot, and pinprick sensation was diminished compared to the right foot. (Tr. 244). He also noted that Zimmerman's greatest impairment appeared to be his morbid obesity, and that his prognosis was poor, and he probably could not even do sedentary work.*fn2 (Tr. 245). Two additional consultative examiners, Frank Norsky, M.D. and David Pulver, M.D., indicated that "there [were] no objective clinical signs of any significant disabling condition of the lumbosacral spine" (Tr. 232), and "claimant has a history of discogenic disease of the lumbar spine without significant findings at this time." (Tr. 199). Finally, the Commissioner retained Joung R. Oh, M.D. and Sury Putcha, M.D. to make a physical residual function capacity ("RFC") assessment without a physical examination. They opined that Zimmerman could lift and carry 50 pounds occasionally and 25 pounds frequently, and that he could stand, walk or sit for a total of about six hours in an eight hour work day. (Tr. 234, 258).

In spite of the assessments of Drs. Tahir, Lesser, and Canfield, the ALJ denied benefits, noting "the claimant retains the residual functional capacity to perform a full range of medium work, which would include his past relevant work . . . as a security guard, [which] requires a light level of exertion." (Tr. 21). He also noted that "the conclusions of the claimant's treating physician are not controlling since they are unsupported by objective evidence in the record." (Tr. 23). Finally, the ALJ explained he did not find credible Zimmerman's allegations of unbearable pain on an unrelenting 24 hour per day basis. (Tr. 24).

DISCUSSION

A. The Standard of ...


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