United States District Court, W.D. Louisiana, Alexandria Division
REPORT AND RECOMMENDATION
H.L. Perez-Montes, United States Magistrate Judge.
Warner (“Warner”) appeals the denial of his claim
for Social Security Disability Insurance Benefits
(“DIB”). Substantial evidence does not support
the Administrative Law Judge's
(“ALJ's”)/Commissioner's conclusion that
Warner's disability onset date was February 13, 2013, or
that Warner was engaging in substantial gainful activity from
February 13, 2013 until July 26, 2014. Further, the ALJ
failed to make a finding as to whether Warner's work from
August 9, 2012 to February 13, 2013 was an unsuccessful work
attempt. Therefore, Warner's appeal should be GRANTED,
the Commissioner's final decision should be VACATED, and
the case should be REMANDED.
filed an application for DIB on July 22, 2011, alleging a
disability onset date of August 7, 2010 (Doc. 6-1, p. 22) due
to a right shoulder injury, lower back injury, sprained hips,
depression, and anxiety (Doc. 6-1, p. 34). That application
was initially denied by the Social Security Administration
(“SSA”) on March 2, 2012 (Doc. 6-1, p. 50).
Warner did not appeal.
filed a second application for disability insurance benefits
on May 13, 2015, alleging a disability onset date of August
9, 2012 (Doc. 6-2, p. 18) due to: severe depression; anxiety;
PTSD; “right shoulder (surgery) pain and
weakness”; “chronic back pain (lumber
surgery)”; “hip pain and degeneration
(surgery)”; “constant headaches and memory loss
from a work accident”; knees; ankles; and “left
thigh (gun-shot wound).” (Doc. 6-2, p. 25). That
application was initially granted with an onset date of May
1, 2014 (Doc. 6-1, p. 71; Doc. 6-2, p. 97). However, Warner
returned to work on August 5, 2014, working full time and
earning $27.10 per hour without a subsidy. (Doc. 6-2, p. 97;
Doc. 6-3, p. 2). Warner's DIB application was then denied
because Warner was engaging in substantial gainful activity
(Doc. 6-2, p. 97; Doc. 6-3, pp. 2, 4).
de novo hearing was held before an ALJ on June 20,
2017 at which Warner appeared with his attorney. (Doc. 6-3,
p. 76). The ALJ noted Warner had been granted disability
benefits with an onset date of May 1, 2014,  but that a
favorable determination had been overturned because Warner
had performed substantial gainful activity “within the
waiting period or within 12 months of onset.” (Doc.
6-1, p. 19). The ALJ concluded that Warner was not disabled
on May 1, 2014 (the disability onset date determined by the
SSA) because he was engaged in substantial gainful activity
from August 14, 2014 through May 31, 2015, and performed
continuous military duty with the United States Army Reserve
through 2016. (Doc. 6-1, p. 19). Thus, the disability
evaluation ended at Step 1.
requested a review of the ALJ's findings, but the Appeals
Council declined to review it (Doc. 6-1, p. 6), and the
ALJ's decision became the final decision of the
Commissioner of Social Security (“the
filed this appeal for judicial review of the
Commissioner's final decision. (Doc. 10). Warner raises
the following grounds for relief on appeal:
1. The ALJ incorrectly established May 1, 2014 as
Warner's disability onset date instead of August 9, 2012.
2. New and material evidence was submitted to the Appeals
Council that necessitates a remand as provided by 20 C.F.R.
Commissioner filed a response to Warner's appeal. (Doc.
Medical and Administrative Records
Gerald Dzurik, a DDS examiner, examined Warner's medical
records in November 2014. (Doc. 6-1, pp. 67). Dr. Dzurik
found Warner has exertional limitations of only occasionally
lifting of carrying 10 pounds; stand and/or walk a total of
“slightly less than” 2 hours in an 8-hour day;
sit a total of 6 hours in an 8-hour day; pushing and/or
pulling is limited in the left lower extremity; only
occasionally climbing ramps/stairs, balancing, stooping,
kneeling, crouching, or crawling; limited reaching with the
right arm and limited handling with the right hand; and he
must avoid concentrated exposure to fumes, odors, dusts,
gases, and poor ventilation. (Doc. 6-1, p. 67).
Robert McFarlain, Ph.D. also examined Warner's mental
health records for the SSA in September 2014. Dr. McFarlain
found Warner suffers from an affective disorder and an
anxiety disorder. (Doc. 6-1, pp. 63-64). Dr. McFarlain found
Warner had a moderate limitation in his ability to understand
and remember detailed instructions; a moderate limitation in
his ability to interact appropriately with the general
public; and a moderate limitation in his ability to respond
appropriately to changes in the work setting. (Doc. 6-1, pp.
2015 evaluation of Warner's work activity showed he was
awarded DIB with an onset date of May 1, 2014. (Doc. 6-2, p.
97). Subsequently, Warner was found to have returned to work
on August 5, 2014, working 40 hours per week and earning
$27.10 with no subsidy. (Doc. 6-2, p. 97). Warner's DIB
award was disallowed due to his substantial gainful activity.
(Doc. 6-2, p. 97).
2017 administrative hearing, Warner testified that he was 49
years old, 5' 10” tall, and weighed about 200
pounds. (Doc. 6-3, pp. 79-80). Warner lives with his wife and
receives medical retirement income of about $1400 per month
(Doc. 6-3, p. 80). Warner stopped working in May 2015. (Doc.
6-3, p. 80). Warner's wife works as a physical therapy
assistant. (Doc. 6-3, p. 83).
testified that he drives an automatic transmission pickup
truck (Doc. 6-3, pp. 80-81). Warner completed high school and
two years of college. (Doc. 6-3, p. 81). Warner also received
vocational training as a mechanic in the National Guard (Doc.
6-3, p. 81). Warner was still in the Army Reserve at the time
of the administrative hearing. (Doc. 6-3, p. 81).
was a federal civil service mechanic for the Government, and
worked on a variety of military automotive equipment. (Doc.
6-3, p. 81). Warner's job involved some welding. (Doc.
6-3, p. 82).
has physical problems caused by an accident and back injury
suffered when he was in the military, and another accident in
2012. (Doc. 6-3, p. 84).
August 9, 2012, when Warner had a civil service job as a
mechanic, he fell eight feet from a “retch, ”
which is a container loading machine for loading Army
containers onto ships or trucks. (Doc. 6-3, pp. 91, 94).
Warner testified that he was off work for a week, then
returned to work on modified light duty for six months, until
February 2013. (Doc. 603, p. 94).
had left hip surgery in February 2013 for a labrum tear,
ligament tear, and tendon release and cleanup. (Doc. 6-3, p.
85). Warner had physical therapy after his hip surgery. (Doc.
6-3, p. 85). Warner had a laminectomy and discectomy in
February 2014, with physical therapy afterward. (Doc. 6-3,
pp. 84-85). Warner again returned to work in August 2014.
(Doc. 6-3, p. 95).
testified that, from August 2012 through February 2013, his
work duties were modified to accommodate him, and he missed
about 130 hours of work during that time. (Doc. 6-3, pp.
95-96). Warner worked in the front office, answering phones
and doing some computer work. (Doc. 6-3, p. 82). Warner was
placed on leave without pay on February 13, 2013. (Doc. 6-3,
testified that he stopped working in May 2015. (Doc. 6-3, p.
97). Warner medically retired from his federal civil service
job after that. (Doc. 6-3, p. 83).
testified that, although he has stopped working, he does not
feel better. (Doc. 6-3, p. 83). Warner is still receiving
treatment at the Veterans Administration Hospital in
Pineville. (Doc. 6-3, p. 83). Warner drives there or his wife
takes him (Doc. 6-3, p. 83). One of Warner's medications
made him sleepy and caused problems during his 45 minute
drive home from work. (Doc. 6-3, p. 83).
testified he is being treated for PTSD and cannot work around
or with a large group of people. (Doc. 6-3, pp. 82-83).
Warner's PTSD manifests itself through a lot of anxiety,
frustration, and anger. (Doc. 6-3, p. 83). Warner's PTSD
caused him to be short-tempered and have anxiety attacks, and
to not get along with his co-workers and supervisors. (Doc
6-3, p. 83).
now has constant radiating pain down his right side into his
right foot. (Doc. 6-3, p. 85). Warner's problem has been
worse after the surgery than it was before, and his doctors
have discussed another surgery. (Doc. 6-3, p. 85). Warner
testified that he is still learning what he can and cannot do
at home. (Doc. 6-3, p. 84). Warner tries to do yard work, but
he hires his nephew to help him when it is too much. (Doc.
6-3, p. 84). Warner walks to the end of his driveway every
day to get the mail, and he starts having hip pain and
fatigue on his way back to the house. (Doc. 6-3, pp. 85-86).
It takes about two minutes to walk down his driveway. (Doc.
6-3, p. 86). Riding a stationary bicycle helps relieve the
pressure on his hip while affording him exercise. (Doc. 6-3,
p. 86). Warner is sore and fatigued the day after he rides
it. (Doc. 6-3, p. 86).
takes hydrocodone for pain, tizanidine to relax his lower
back muscles, and diclofenac cream to rub into his lower
back. (Doc. 6-3, p. 92). Warner goes to the VA at least once
a month, for both ...