Opinion
Case No. ED CV 14-1362-PJW
02-09-2016
RAYMOND GONZALES, JR., Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.
MEMORANDUM OPINION AND ORDER
Plaintiff appeals a decision by Defendant Social Security Administration ("the Agency"), denying his application for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). He claims that the Administrative Law Judge ("ALJ") erred when he failed to consider whether Plaintiff met Listing 1.03. For the following reasons, the Court concludes that the ALJ erred and remands the case to the Agency for further proceedings.
In 2006, Plaintiff fell off a roof and suffered a compound fracture of his left ankle and broke his left leg. (Administrative Record ("AR") at 41, 48.) Plaintiff underwent several surgeries to repair his ankle and leg and apparently has pins in place as a result. (AR 41, 222.) He now uses a cane. (AR 45.)
The record is sparse as to exactly what happened to Plaintiff and when. He testified at the hearing that he fell in 2006. (AR 41.) He told the examining orthopedist that he fell in 2004. (AR 226.) It is possible that he fell twice. Unfortunately, there are no medical records from 2004 or 2006 to verify what happened when he fell or thereafter, when he was treated.
The ALJ found that Plaintiff's "history of fracture deformity of the left ankle" was a severe impairment but did not find any severe impairments of the left leg. (AR 24.) The ALJ then considered whether Plaintiff met Listings 1.02 (major dysfunction of a joint), 1.04 (disorders of the spine), or 1.06 (fracture of the femur, tibia, pelvis, or one or more of the tarsal bones) and concluded that he did not. (AR 25.) Plaintiff complains that the ALJ overlooked one, Listing 1.03, relating to reconstructive surgery or surgical arthrodesis of a major weight-bearing joint. (Joint Stip. at 3-12.) He contends that the ALJ's failure to consider this Listing necessitates remand to allow him to address it.
The Agency agrees that the ALJ failed to address Listing 1.03, but argues that that is irrelevant. (Joint Stip. at 12.) It points out that the ALJ did consider Listing 1.02, which is similar, and that the reviewing doctors considered Listing 1.03, which should be enough.
The Court disagrees on both counts. Arguably, Plaintiff could satisfy the criteria of Listing 1.03, i.e., surgery on a weight-bearing joint, trouble walking effectively, and more than 12 months between the injury and the return to effective walking. See 28 C.F.R. Part 404, Subpart P, Appendix 1, Listing 1.03. Purportedly, Plaintiff has had reconstructive surgery on his ankle and leg and has some trouble walking as a result. Further, he has arguably exceeded the 12-month time limit for recovery as the fall occurred at the latest in 2006 and, as the ALJ noted, Plaintiff can only walk for 15-30 minutes at a time, still needs to use a cane at times, and has to avoid uneven surfaces. (AR 26.)
Further, the fact that the reviewing doctors considered Listing 1.03 is not enough for the Court to overlook the ALJ's oversight here. The Court is not called upon to determine whether the reviewing doctors considered the appropriate Listings, it is tasked with determining whether the ALJ did. The ALJ's decision makes clear that he did not consider Listing 1.03. And, the fact that the reviewing doctors did, seems to bolster Plaintiff's contention that the ALJ should have addressed it, not the Agency's contention that it is clear that Plaintiff does not meet the requirements for the Listing. On remand, the ALJ should consider whether Plaintiff can establish that he meets the requirements for Listing 1.03.
Plaintiff also contends that the ALJ erred when he failed to find that Plaintiff's compound fracture of his left leg was also a severe impairment. (Joint Stip. at 6.) The ALJ should also analyze this issue on remand.
IT IS SO ORDERED.
DATED: February 9, 2016.
/s/_________
PATRICK J. WALSH
UNITED STATES MAGISTRATE JUDGE
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