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Bryant v. Barnhart

July 13, 2005

EARL BRYANT, JR. PLAINTIFF
v.
JO ANNE B. BARNHART, COMMISSIONER, SOCIAL SECURITY ADMINISTRATION DEFENDANT



The opinion of the court was delivered by: George Howard, Jr., District Judge.

MEMORANDUM OPINION AND ORDER

Pending before the Court are the proposed findings and recommended disposition of the Magistrate Judge regarding the final decision of the Commissioner of Social Security Administration denying Plaintiff's claim for Disability Insurance benefits.

After carefully reviewing the record, the Court is unable to accept the proposed findings and recommended disposition of the Magistrate Judge which, in substance, affirms the denial of benefits to the Plaintiff. The Court is persuaded that the decision of the Administrative Law Judge (ALJ) is not supported by substantial evidence and that the case should be remanded for a proper and objective reconsideration of the evidence submitted and consider ordering consultative examinations.

BACKGROUND

On May 8, 2001, Plaintiff protectively filed his application for supplemental security income (SSI) benefits under Title XVI of the Act. Plaintiff alleged a disability onset date of October 10, 1999, due to joint pain, chest and shoulder pain, high blood pressure and swelling in his knees and feet. Plaintiff's application was denied at the initial and reconsideration levels.

At Plaintiff's request, a de novo hearing before an Administrative Law Judge (ALJ) was conducted on July 30, 2003, in Little Rock, Arkansas. ALJ Donald Rebsamen issued an adverse decision on May 24, 2004, holding that Plaintiff was not disabled within the meaning of the Act. On July 10, 2004, the Appeals Council declined review of the decision. Accordingly, the May 24, 2004, decision became the final decision of the Commissioner. This action was instituted by Plaintiff on July 28, 2004.

Plaintiff testified at the administrative hearing that he was 57 years of age; that he possessed a high school diploma and could read and write; that he had ceased work on October 10, 1999, and has not done any work since that date; and that he has not had any source of income since October 10, 1999. Plaintiff further stated that his past work, as a grocery store operator for thirty years, consisted of stocking supplies, butchering, sale activities and as a cashier. He further stated that lifting activities consumed approximately 50% of the time lifting items from 20 pounds to 40 pounds in weight.

Plaintiff further stated that his illness commenced in 1998, due to increased level of high blood pressure as well as pain in his legs, joints, chest and back; that he had difficulty in using his left hand at times and could not do any significant walking and would have to use a cane when he walked; that he could sit for 15 to 20 minutes and would become dizzy; that he could lift approximately 10 pounds with his right hand; and that he depended upon his children for assistance.

Marcia Stewart, Plaintiff's daughter, testified that she, a brother and a sister became most concerned about Plaintiff's physical condition and the unusual deterioration of conditions in his grocery store; that she cleaned the store, paid bills, ordered supplies and stocked the materials while the brother performed the butchering and other activities in an attempt to improve conditions at the store and lessen the affliction and great harm Plaintiff was experiencing by working in his store; that on one occasion, while Plaintiff was on duty at the store, she carried the Plaintiff to the emergency room at the Saint Vincent Hospital to receive medical treatment; that during the last year Plaintiff operated his business, Plaintiff had "a lot of headaches ... and had more blackouts than two;" that she and her brother performed household chores such as cooking, emptying trash and cleaning the house because the mother was also disabled and receiving social security benefits. In addition, the daughter gave the following significant testimony regarding the Plaintiff's physical condition:"A.... He owned that grocery store for many years and I've seen him put in hard work and he worked when he could. And then in the last year we had to force him out of the store. We had to force him to, you know, to close it down. He didn't want to. You know, he was just, like, well this all I know. This is how I make my living. I was, like well, Dad, you can't do it like you used to."

The medical evidence in the record reflects that on September 18, 2001, a medical examination revealed that he was taking Vioxx, Tylenol as needed, and Atenenol; that Plaintiff experienced headaches, chest pains, right ulner parathesis, high blood pressure, ankle, shoulder, knee and elbow pain.

Baptist Hospital medical records noted Plaintiff had complaints of headaches and shortness of breath and headaches were an eight on a scale of ten. Dr. Tommy Love gave Plaintiff a diagnosis of syncope*fn1 episode of uncertain origin, possible hyperventilation syndrome, hypertension and degenerative arthritis of knees.

The ALJ, after invoking the five-step analysis prescribed by the Regulations (See: 20 C.F.R. s 404152.0) made the following relevant findings:

[C]laimant has the residual functional capacity to perform a full range of exertional work activity on all levels because his alleged impairments, individually and in combination, give rise to limitations that are only slight. He can perform all basic work-related activities at all exertional levels which includes the capacity to sit, stand, walk, push, pull, carry, lift, and engage in tasks that require gross and fine digital dexterity.... There is little evidence in the way of objective clinical or laboratory findings in his record that would support his contention that he had disabling impairments.... His alleged exertional impairments are nothing more than slight abnormalities that have no more than a minimal effect on his ability to do basic work .... .... In this case, the administrative law judge concludes Mr. Bryant can perform a narrowed range of medium work.

The undersigned concludes that the testimony of Mr. Bryant is not credible because it is inconsistent with the objective medical evidence and other evidence of record. Much in his case depends on the evidentiary weight placed on his credibility because there is a paucity of pathological findings in this case. The medical evidence shows that his last medical treatment had been in 1997, but there is no evidence in the file that he had medical treatment in October 1999. He does not have a longitudinal ongoing ...


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