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Melvin Nichols v. Michael J. Astrue

October 20, 2011

MELVIN NICHOLS,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Vecchiarelli Magistrate Judge

MEMORANDUM OPINION AND ORDER

Plaintiff, Melvin Nichols ("Plaintiff"), challenges the final decision of Defendant, Michael J. Astrue, Commissioner of Social Security ("the Commissioner"), denying Plaintiff's application for a Period of Disability ("POD") and Disability Insurance Benefits ("DIB") under Title II of the Social Security Act, 42 U.S.C. §§ 416(i), 423 ("the Act"). This Court has jurisdiction pursuant to 42 U.S.C. § 405(g). This case is before the undersigned United States Magistrate Judge pursuant to the consent of the parties entered under the authority of 28 U.S.C. § 636(c)(2). For the reasons set forth below, the Commissioner's final decision is AFFIRMED.

I. PROCEDURAL HISTORY

Plaintiff filed an application for a POD and DIB on February 17, 2005, and alleged a disability onset date of September 24, 2004. (Tr. 47.) The application was denied initially and upon reconsideration, so Plaintiff requested a hearing before an administrative law judge ("ALJ"). (Tr. 47.) On January 9, 2008, ALJ Norman R. Buls held Plaintiff's hearing by video conference. (Tr. 47.) Plaintiff appeared, was represented by counsel, and testified. (Tr. 47.) On April 23, 2008, ALJ Buls found Plaintiff not disabled. (Tr. 12.) On August 15, 2008, the Appeals Council vacated and remanded ALJ Buls's decision. (Tr. 12.)

On November 3, 2008, ALJ Thomas Ciccolini ("the ALJ") held Plaintiff's hearing upon the Appeals Council's remand. (Tr. 357.) Plaintiff appeared, was represented by counsel, and testified. (Tr. 357.) A medical expert ("ME") and vocational expert ("VE") also appeared and testified. (Tr. 357.) On February 4, 2009, the ALJ found Plaintiff not disabled. (Tr. 27.) On August 4, 2010, the Appeals Council declined to review the ALJ's decision, so the ALJ's decision became the Commissioner's final decision. (Tr. 4.) On October 5, 2010, Plaintiff timely filed his complaint to challenge the Commissioner's final decision. (Doc. No. 1.) On March 18, 2011, Plaintiff filed his Brief on the Merits. (Doc. No. 18.) On June 1, 2011, the Commissioner filed his Brief on the Merits. (Doc. No. 21.) Plaintiff did not file a Reply Brief.

Plaintiff asserts two assignments of error: (1) the ALJ failed to determine that Plaintiff's gouty arthritis was a severe impairment; and (2) the ALJ failed to give good reasons for giving the opinion of Plaintiff's treating physician, Dr. Brooks, less than controlling weight.

II. EVIDENCE

A. Personal and Vocational Evidence

Plaintiff was 50 years old on the date he was last insured for DIB. (Tr. 26.) He has at least a high school education and is able to communicate in English. (Tr. 26.) He has past relevant work experience as a mail carrier. (Tr. 25.)

B. Medical Evidence

Plaintiff claimed both physical and mental impairments, but his mental impairments are not at issue here. It is not disputed that Plaintiff suffered obesity, sleep apnea, diabetes mellitus, hypertension, and knee pain caused by gouty arthritis. (Tr. 15-17.) On June 25, 2005, Plaintiff presented to Dr. Todd S. Hochman, M.D. for an evaluation of his knee pain, hip pain, and obstructive sleep apnea. (Tr. 178.) Dr. Hochman determined that, "[b]ased on the finding of [his] examination, [Plaintiff] would not [have] difficulties with work related to physical activities such as walking short distances, standing, sitting, or carrying and lifting lighter objects." (Tr. 180.)

On July 6, 2005, state agency reviewing physician Dr. Freihofner, M.D.,*fn1 assessed Plaintiff's physical residual functional capacity ("RFC") as follows. (Tr. 189-96.) Plaintiff could lift and carry 20 pounds occasionally and 10 pounds frequently. (Tr. 190.) He could sit, stand, and walk for about 6 hours in an 8-hour workday with normal breaks. (Tr. 190.) His abilities to push and pull were not limited except to the extent that he was limited in his abilities to lift and carry. (Tr. 190.) He could never climb ladders, ropes, or scaffold; he could occasionally climb ramps and stairs; and he could frequently balance, stoop, kneel, crouch, and crawl. (Tr. 191.) He was limited in his ability to reach in all directions, but he otherwise had no manipulative limitations. (Tr. 192.) He had no visual, communicative, or environmental limitations. (Tr. 192-93.) Dr. Freihofner determined that Plaintiff was partially credible, but that Plaintiff's impairments were not as severe as Plaintiff alleged. (Tr. 194.) On October 7, 2005, state agency reviewing physician Dr. W. Jerry McCloud, M.D., affirmed Dr. Freihofner's findings. (Tr. 196.)

On October 12, 2005, Dr. Barry H. Brooks, M.D., authored a medical source statement indicating Plaintiff's physical RFC as follows.*fn2 (Tr. 250-51.) Plaintiff could lift and carry 5 pounds occasionally. (Tr. 250.) Plaintiff could lift either 5 or 6 pounds frequently-it is not clear because it appears as if Dr. Brooks superimposed either a 5 over a 6, or a 6 over a 5 when he wrote his opinion of Plaintiff's ability to lift frequently. (Tr. 250.) Plaintiff could could sit, stand, and walk for 4 hours in an 8-hour work day and without interruption. (Tr. 250.) He could rarely climb, balance, stoop, crouch, kneel, and crawl. (Tr. 251.) He could occasionally reach, push, and pull; and he could frequently handle, feel, see, hear, speak, and perform fine and gross manipulation. (Tr. 251.) He was restricted from working in environments with moving machinery, extreme temperatures, chemicals, dust, noise, and fumes. (Tr. 251.)

On February 4, 2008, Dr. Franklin D. Krause, M.D., authored a medical source statement indicating Plaintiff's physical RFC as follows. (Tr. 295-300.) Plaintiff could continuously lift up to 50 pounds and frequently lift up to 100 pounds. (Tr. 295.) He could continuously carry up to 20 pounds, frequently carry up to 50 pounds, and occasionally carry up to 100 pounds. (Tr. 295.) He could sit and stand for 8 hours at a time and walk for 5 hours at a time without interruption. (Tr. 296.) He could sit, stand, and walk for 8 hours in an 8-hour workday. (Tr. 296.) He could continuously reach, handle, finger, feel, push, pull, and operate foot controls. (Tr. 297.) He could occasionally climb ladders, ropes, and scaffolds; and he could frequently climb stairs and ramps, balance, stoop, kneel, crouch, and crawl. (Tr. 298.) He could never work in unprotected heights or ...


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