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Carl Eugene Fisher v. William H. Baughman

November 8, 2011


The opinion of the court was delivered by: William H. Baughman, Jr. United States Magistrate Judge



This is an action for judicial review of the final decision of the Commissioner of Social Security denying the application of the plaintiff, Carl Eugene Fisher, for disability insurance benefits.*fn1 The parties have consented to magistrate judge's jurisdiction.*fn2

The Administrative Law Judge ("ALJ"), whose decision became the final decision of the Commissioner, found that Fisher had severe impairments consisting of degenerative joint disease of the back and leg and diabetes mellitus with lower extremity neuropathy.*fn3 The ALJ made the following finding regarding Fisher's residual functional capacity:

After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform a limited range of light work as defined in 20 CFR 404.1567(b). Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds.

Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm and leg controls. To be considered capable of performing a full or wide range of light work, an individual must have the ability to do substantially all of these activities. If someone can do light work, we determined that he can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods.

Specifically, the evidence supports that the claimant is capable of lifting and carrying 20 pounds occasionally, 10 pounds frequently; sitting at least eight hours out of eight and standing and/or walking six hours out of eight; however, he should be afforded the opportunity to sit or stand at will. The claimant can perform tasks requiring occasional bending, stooping and squatting; however he cannot climb, perform overhead work or push and pull more than 10 pounds occasionally. The claimant is limited to simple, repetitive job tasks in a low stress work environment.*fn4 Based on this residual functional capacity analysis, the ALJ found Fisher incapable of performing his past relevant work as a truck driver.*fn5

Applying the medical-vocational grids in Appendix 2 of the regulations and relying on an answer to a hypothetical question posed to the vocational expert at the hearing setting forth the residual functional capacity finding quoted above, the ALJ determined that a significant number of jobs existed locally and nationally that Fisher could perform.*fn6 The ALJ, therefore, found Fisher not under a disability.*fn7

In his brief on the merits, Fisher argues for reversal of the Commissioner's decision on the grounds that it does not have the support of substantial evidence in the administrative record.*fn8 Specifically, Fisher contends that: (1) the ALJ failed to consider the combined effects of Fisher's impairments and medications on his functioning;*fn9 (2) the ALJ's evaluation of the severity of Fisher's back pain improperly used a subjective "sit and squirm" test;*fn10 (3) the ALJ failed to give proper weight to the opinion of Dr. Anil Patel, Fisher's treating physician;*fn11 and (4) the ALJ failed to address the "exacerbating effects" of Fisher's obesity on his impairments.*fn12

As to the treating physician argument raised here, Fisher essentially maintains that although Dr. Patel's opinion as to the nature and severity of Fisher's impairment was not accompanied by direct citations to the supporting medical evidence, that opinion was consistent with the medical record and based on Dr. Patel's five-year history of treating Fisher.*fn13 Such circumstances, Fisher asserts, along with the fact that a state reviewing physician's report (which the ALJ relied on) was not based on a complete medical file, argue that the ALJ did not comply with the requirement of the treating physician rule.*fn14

I conclude that the ALJ's residual functional capacity finding does not have the support of substantial evidence. The case must be remanded for reconsideration of that finding.


A. Standard of review

The regulations of the Social Security Administration require the Commissioner to give more weight to opinions of treating sources than to those of ...

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