The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
This is an action brought pursuant to 42 U.S.C. § 405(g) to review the final determination of the Commissioner of Social Security ("Commissioner" or "Defendant"), which terminated the disability benefits of Gregory Logins, Sr. ("Plaintiff"). Now before the Court is Defendant's motion (Docket No. [#4]) for judgment on the pleadings and Plaintiff's cross-motion [#6] for judgment on the pleadings. Defendant's application is denied, Plaintiff's cross-motion is granted, and this matter is remanded for further administrative proceedings.
A brief summary of the general background facts of this case were accurately set forth in Defendant's Memorandum of Law, as follows:
Plaintiff's application for disability insurance benefits was granted by an ALJ on June 29, 1995, with an onset date of August 23, 1993. See Tr. 38. At that time, plaintiff met Listing 1.05C for back impairments. Id. In 1998 and June 2002, the Commissioner conducted continuing disability reviews and benefits were continued for lack of medical improvement. Id.; see also Tr. 24-25.
In or about early 2006, the Commissioner conducted a third continuing disability review. See Tr. 11, 20-23. Thereafter, the Commissioner determined that plaintiff was no longer disabled as of January 2006. See Tr. 11, 22-23. . . . At plaintiff's request, an administrative hearing was held on July 29, 2008 before ALJ William Straub, at which plaintiff appeared pro se[, waived his right to be represented,] and testified. Tr. 126-48. ALJ Straub considered the case de novo and on September 23, 2008, issued his decision finding that plaintiff's disability had ceased and that plaintiff was no longer entitled to disability insurance benefits. Tr. 8-19. The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review on December 4, 2009. Tr. 3-5. This action followed.
Def. Memo of Law [#4-2] at 1-2.
The present record, consisting of 148 pages, does not include the administrative record from 1995, when Plaintiff was initially found to be disabled, nor does it include any information from 1998, when Defendant conducted the first continuing disability review. However, as indicated above, Plaintiff was originally found to be disabled in 1995, with an onset date of August 23, 1993, because he was found to have a back impairment that met or equaled Listing 1.05C. Tr. at 38. Such listing, concerning disorders of the spine, was later amended, effective February 19, 2002, and renumbered as Listing 1.04. See, Maynard v. Astrue, 276 Fed.Appx. 726, 732, 2007 WL 495310 at *5 (10th Cir. Feb. 16, 2007) (citing 66 Fed.Reg. 58,010, 58, 010 (Nov. 19, 2001)).*fn1
With regard to the continuing disability review conducted in 2002, the record contains several documents, which apparently comprise the entire record created at that time. See, Tr. 24-25, 48-76. In that regard, on March 18, 2002, Plaintiff indicated, in a questionnaire, that he was not able to walk at all, and "mov[ed] about very little." Tr. at 51. Plaintiff further stated that his wife and/or mother performed household chores, such as cooking, cleaning, and shopping. Id. at 52. Plaintiff reported that he was able to watch television, read, and attend church functions on Sunday, Monday, and Wednesday. Id. at 52. On May 20, 2002, Plaintiff completed another written questionnaire, in which he reported that he felt pain in his back and legs, and could not lift, squat, stand for long periods, or "climb a lot of stairs." Id. at 63, 66. Plaintiff indicated that he needed to use a back brace, prescribed by a Dr. Chang, and that he could only walk for five-to-ten minutes before needing to rest. Id. at 64. Plaintiff stated that his back pain prevented him from interacting with his children and wife. Id. at 65. Plaintiff also stated that his daily activities generally consisted of picking-up and dropping-off his children at school, and staying at home, and preparing meals. Id. at 58-60. Plaintiff further stated that his wife performed all housework, yard work, and shopping, and usually drove the family car, though he drove "sometimes." Id. at 61-62. Plaintiff further indicated that his treatment consisted of taking ibuprofen and using a Final listings 1.04B, for spinal arachnoiditis, and 1.04C, for lum bar spinal stenosis resulting in pseudoclaudication, list the characteristic signs and symptom s of their respective im pairm ents and require appropriate lim itations of function. Thus, final listing 1.04B describes severe burning or painful dysesthesia resulting in the need for frequent changes in position or posture, and final listing 1.04C describes chronic nonradicular pain and weakness resulting in an inability to am bulate effectively. In response to a public com m ent, final listing 1.04B contains a more precise description of what we m ean by frequent changes in position or posture. The final rule states that the changes in position or posture m ust be m ore than once every 2 hours.heating pad. Id. at 67-68. On May 22, 2002, Plaintiff completed a further report in which he stated that he previously worked as a machinist, which involved walking, standing, sitting, kneeling, handling, writing, and lifting up to fifty pounds. Id. at 70. On June 3, 2002, at the Commissioner's request Plaintiff was examined by Michael Obrecht, D.O. ("Obrecht"), a consultative examining physician. Plaintiff reportedly told Obrecht that his back pain was seven out of ten, and that he could not sit, walk, or stand for long periods. Id. at 108. Plaintiff also indicated that he used a cane and a back brace. Id. at 109. Plaintiff stated that he was unable to carry a gallon of milk or a small bag of groceries. Id. Obrecht noted that Plaintiff's then-current treatment consisted of taking ibuprofen and Tylenol. Id. at 108. Upon examination, Obrech made the following findings about Plaintiff: 1) he appeared to have a "moderate backache"; 2) his gait was wide-based and flat-footed; 3) he was unable to walk on his heels; 4) he was only able to partially squat; 5) he rose slowly from his chair; 6) he had full flexion in his cervical spine, along with full extension, full lateral flexion bilaterally, and full rotary movement; 7) in his upper extremities he had full range of motion, normal reflexes, and full strength; 8) in his thoracic and lumbar spine, he had limited forward and lateral flexion, limited rotary movement, and mild tenderness in the area of L4-L5, but no spasm, and straight-leg testing was negative bilaterally; and 9) in his lower extremities, he had full range of motion in the hips, knees, and ankles, normal reflexes, no atrophy, and strength was 4/5 in the proximal hip musculature and 5/5 in the distal musculature. Id. at 110. Obrecht's impression was "chronic lumbosacral back pain, probably musculoskeletal in origin," and his prognosis was "stable." Id. at 111. Obrecht found no evidence of radiculopathy.*fn2 Id. at 111 ("There were no findings consistent with radiculopathy."). Obrecht concluded that Plaintiff would "have a mild exertional impairment for lifting and carrying greater than 50 pounds," but overall, "no specific deficits were noted during the exam." Id.*fn3 Obrecht noted, though, that he did not have Plaintiff's medical records or prior diagnostic tests, which would have been helpful. Id.
Despite these mild findings, on June 24, 2002, the Commissioner issued a determination that Plaintiff remained disabled. Id. at 24-25. With respect to this determination, the Commissioner noted that Plaintiff had originally been found disabled due to "degenerative disc disease and low back strain," and that there was "no significant medical improvement." Id. at 25. On this point, the medical evidence apparently consisted only of Obrecht's report, which the Commissioner essentially paraphrased within his decision. Id. Because the Commissioner found no medical improvement, he did not conduct a residual functional capacity assessment. See, 20 C.F.R. § 404.1594(c)(2) (Commissioner does not conduct a residual functional capacity assessment unless there has first been a finding of medical improvement). The Commissioner's decision did not refer to a particular listed impairment under the Social Security Disability regulations. However, in the present action, the Commissioner indicates that Plaintiff's impairments were considered in 2002 to have equaled a listed impairment in 2002.*fn4 See, ALJ Decision, Tr. at 15 ("[T]he claimant's . . . impairments no longer met or medically equaled the same listing that was equaled at the time of the CPD.").
In or about September 2005, the Commissioner commenced a second continuing disability review. In connection with that review, on September 20, 2005, Plaintiff completed a questionnaire. Tr. at 77-82. When asked to provide the name of any doctor that he had seen in the last twelve months, Plaintiff wrote, "your doctor," apparently referring to an agency physician or consultative physician. Id. at 78. However, there are no records or other indications that Plaintiff was seen by an agency physician, or any other doctor, during that period. Plaintiff stated that he did not know the doctor's address. Id. Plaintiff stated that he spent his days watching television, reading, and going to church. Id. at 81. Plaintiff stated that he was able to drive, but occasionally had someone else drive him places, and that his children helped with cleaning and shopping. Id. When asked to describe his "personal mobility," Plaintiff stated that he "walk[s] a little to get dress[ed] go to the bathroom and make sure my children get off to school." Id. at 80.
On December 30, 2005, Plaintiff was examined by Brij Sinha, M.D. ("Sinha"), a non-treating consultative orthopedic doctor. Id. at 113-115. Plaintiff told Sinha that his primary complaint was back pain, that was relieved with rest and medication, consisting of Advil and Tylenol. Id. at 113. Plaintiff stated that his pain level was "four to ten," which the Court understands to mean that his pain ranged from four out of ten to ten out of ten. Specifically, Sinha's report states, "The intensity of the pain is 4 to 10." Tr. at 113. Sinha did not indicate that Plaintiff's pain was only "four on a scale of one-to-ten."*fn5
Such point is significant, because both the ALJ and Defendant's counsel in this action have misquoted Sinha's report. See, ALJ's Decision, Tr. at 16 ("The claimant said the intensity of his pain was level 4 out of 10 at that time."); Def. Memo of Law [#4-2] at 6 ("Plaintiff rated the intensity of his pain as a four on a scale of one to ten.").
Plaintiff told Sinha that the pain did not radiate, but was "primarily localized in the back." Id. Plaintiff further told Sinha that he performed cooking, cleaning, laundry, shopping, and child care. Id. at 113. Upon examination, Sinha reported the following findings regarding Plaintiff: 1) he appeared to be in no acute distress; 2) his gait was normal; 3) he could walk on heels and toes without difficulty; 4) he could squat fully; 5) he rose from his chair without difficulty and did not need assistance getting on or off the exam table; 6) he had full hand grip strength; 7) he had full range of movement and strength in his upper extremities; 8) in his thoracic and lumbar spine, he had full flexion, extension, lateral flexion, and no spinal or paraspinal tenderness; 9) straight leg testing was negative bilaterally; and 10) he had full range of movement and strength in his lower extremities. Id. at 114. Sinha reviewed an x-ray of Plaintiff's lumbo-sacral spine, which showed only minimal scoliosis. Id. at 115. More specifically, the radiology report indicated that "the disc spaces, the pedicles and the S-I joints are normal. There is minimal scoliosis with convexity to the left." Id. at 115. Sinha's diagnoses were "hypertension," "back pain, by history," and "minimal scoliosis per x-ray; not clinically evident by exam." Id. Sinha's prognosis was "fair." Id. Additionally, Sinha stated: "He has mild to moderate limitations secondary to back pain, by subjective. There is [sic] no objective signs seen. He needs immediate care of his blood pressure, and claimant had been advised to do so. There are no other physical limitations seen at present." Id.
On February 2, 2006, Plaintiff completed another agency questionnaire. Id. at 85-91. Plaintiff stated that he had not seen a doctor since his last disability report. Id. at 86. Plaintiff also stated that his knees were sore and he did not want to get out of bed due to back pain, and that he was taking ibuprofen and Tylenol. Id. at 85, 88. Moreover, Plaintiff reported that he could not sit for "a long period" due to back pain and leg pain. Id. When asked to provide "remarks," Plaintiff wrote:
There have been no change in my life. I still have bad back pain no way I can go to work. I don't play with my children because of my back problem. I try to walk but I can I can [sic] walk for a long period of time nor sit for a long period of time. The doctor you sent me to never touched my back. He never look to see the back brace (for support of my back). He ask could I bend and I could not. He told me my blood pressure was high and my vision (eyes) were back [sic] too. There were so many people there that I went in to see him for about 2-5 minutes. That's not a[n] exam he never ask about my daily things or how I was feeling. I have been disabled for about 11 years with this back problem. This is my only income for me and my children. No [one] will hire me with this back problem. I wish that doctor would have asked more questions and examined me better. I don't and can't have intercourse because of my back pain.
On May 8, 2006, Peter Seitzman, M.D. ("Seitzman"), a non-treating, non-examining consultative agency review physician, provided a residual functional capacity assessment. Tr. at 117-122. Seitzman indicated that Plaintiff could occasionally lift up to twenty pounds, frequently lift ten pounds, stand and/or walk for about six hours in an eight-hour workday, and sit about six hours in an eight-hour workday. Id. at 118. In that regard, Seitzman observed, inter alia, apparently based on Sinha's report, that Plaintiff had a full range of motion in "all joints & spines," normal "gait & station," and "full manipulation" and grip strength in his hands. Id.
On July 13, 2006, Disability Hearing Officer Salvatore Agro ("Agro") issued a decision, finding that Plaintiff was not disabled. Id. at 37-45. Preliminarily, Agro noted that Plaintiff had originally been found disabled because his impairment met the requirements of listing 1.05C for back impairment. Id. at 38. Agro further indicated that for purposes of his analysis, the continuing disability review performed in 2002 was the correct comparison point decision ("CPD"). Id. On this point, Agro observed that the only medical record from the 2002 review was Obrecht's report, while the only medical records for the current review were Sinha's and Seitzman's reports. Id. at 38-39. Agro then compared Obrecht's report with Sinha's ...