Forrest Miller v. Jo Anne B. Barnhart

182 F. App'x 959
CourtCourt of Appeals for the Eleventh Circuit
DecidedMay 31, 2006
Docket05-15720
StatusUnpublished
Cited by11 cases

This text of 182 F. App'x 959 (Forrest Miller v. Jo Anne B. Barnhart) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Forrest Miller v. Jo Anne B. Barnhart, 182 F. App'x 959 (11th Cir. 2006).

Opinion

PER CURIAM:

Forrest Miller appeals the district court’s order affirming the Commissioner’s denial of his application for disability insurance benefits, 42 U.S.C. § 405(g). After review, we vacate and remand.

I. BACKGROUND

We first review Miller’s medical history and then the Administrative Law Judge’s (“ALJ”) decision.

A. Miller’s Testimony

In his application for social security benefits, Miller alleged that, as of September 13, 1998, he was disabled due to osteoarthritis and allied disorders in his knee caused by an injury at work.

At the administrative hearing, Miller, who was forty-six years old, testified at length as follows. Miller last worked as a prison guard and previously had performed construction work for several electrical companies and attended trade school. Miller’s knee had been causing pain in his left hip and back for the past month and a half that was so severe at times that he could not walk. He always had pain in his knee, even when it was not bearing weight, and it almost always swelled. Miller could stand only for about five minutes, could walk less than 100 feet, and was unsure as to how long he could sit without changing positions. He believed he could not perform a sit-down job because he had to lie down whenever his leg “gave out.” That type of pain occurred at least once a week and lasted for two to three days. Heating pads, ice packs and pain medicine relieved the pain, but sleep was difficult due to the pain in his knee, hip, and back.

As to his daily activities, Miller could lift a sack of groceries on some days and drive a car. His girlfriend usually took care of household chores and grocery shopping, but Miller sometimes prepared his own meals. Miller paid his own bills. His main problem was getting in and out of the bathtub, but he used a shower. He had problems getting dressed but could do it himself. He attended church once a month, but was unable to participate in most of his hobbies due to his knee pain. Miller occasionally used a cane to walk.

B. Miller’s Medical History

After Miller injured his knee by stepping in a hole at work, he saw Dr. James *961 Price, an orthopedic specialist, in September 1998. Dr. Price diagnosed Miller with a ligament tear and performed arthroscopic surgery in October 1998. Dr. Price saw Miller more than twenty times between 1998 and August 2001. Dr. Price’s notes indicated that Miller repeatedly expressed interest in a total knee replacement surgery, but Dr. Price informed him that this should be a last resort treatment due to his young age. Dr. Price only saw Miller once in 2002 and once in 2008. On August 18, 2003, Dr. Price opined that Miller was permanently disabled, that he could not lift more than ten pounds, and that he could stand or walk for less than one hour in an eight-hour work day, but could sit without restriction. Dr. Price further opined that Miller could not squat, twist, or climb, and could only occasionally (one to three hours daily) bend or push and pull.

After his 1998 surgery, Miller was referred to physical therapy but was discharged in February 1999 after attending only five of twelve scheduled appointments and failing to reschedule his last cancelled appointment. During his physical therapy sessions, Miller tolerated the stationary bicycle, gym squats, heel raises, quad sets, hamstring curls, and straight leg raises. Miller complained of pain, but was getting a bit stronger with the exercises. A November 1998 report from the physical therapists indicated that Miller was a chronic smoker who had smoked three packs per day for the past twenty years.

On October 31, 2001, a state agency, non-examining physician assessed that Miller’s ability to push and pull in his lower extremities was limited and that Miller could occasionally lift twenty pounds, frequently lift ten pounds, stand or walk and sit for about six hours of a workday. On February 11, 2002, Dr. Robert Willing-ham, Jr., a non-examining physician, assessed that Miller could occasionally lift twenty pounds, frequently lift ten pounds, stand or walk and sit for about six hours of a workday, and had no limitations in his ability to push and pull.

On January 27, 2003, Dr. Jeffrey Fried, an orthopedic surgeon, examined Miller and was the examining, non-treating physician in the case. Dr. Fried opined that Miller could occasionally lift a maximum of fifty pounds and frequently lift a maximum of ten pounds, could stand or walk for three hours in an eight-hour workday, and could sit without impairment. Dr. Fried advised that Miller should avoid working on uneven terrain due to instability and that his pain medication could affect his alertness.

On June 24, 2003, Dr. James Tison, Miller’s primary care physician, examined Miller and stated that Miller had a chronic unstable right knee and chronic pain, which precluded gainful employment. On August 15, 2003, Dr. Tison opined that Miller had significant functional limitations due to his right knee which required frequent medication for pain relief, and concluded that this would preclude him from employment that requires manual dexterity and alertness. Dr. Tison concluded that Miller would require knee replacement surgery in order to return to “functional capacity.”

In summary, all the doctors essentially agreed that Miller could sit without restriction, but disagreed about the extent to which Miller could stand, walk, and lift. Both treating physicians, Dr. Price and Dr. Tison, determined that Miller was disabled. Specifically, Dr. Price opined that Miller could lift no more than ten pounds and could stand or walk less than one hour a day. The two non-examining physicians concluded that Miller could lift twenty pounds occasionally and ten pounds frequently, and stand or walk six hours a day. The one examining, non-treating physician opined that Miller could lift a maximum of *962 fifty pounds occasionally and ten pounds frequently, and could stand or walk three hours a day.

C. The ALJ’s Decision

We outline the five-step process the ALJ must follow in reviewing an application for social security disability benefits. An ALJ must evaluate Miller’s claim with respect to these five criteria, set forth in 20 C.F.R. § 404.1520:

1. Is Miller performing substantial gainful activity?
2. Does Miller have a severe impairment?
3. Does Miller have a severe impairment that meets or equals a listed impairment?
4. Can Miller perform his past relevant work?
5. Based on Miller’s age, education, and work experience, can Miller perform other work of the sort found in the national economy?

In this case, the ALJ followed the five step process. As for the first step, the ALJ concluded that Miller had not engaged in substantial gainful activity since the onset date of his alleged disability.

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Bluebook (online)
182 F. App'x 959, Counsel Stack Legal Research, https://law.counselstack.com/opinion/forrest-miller-v-jo-anne-b-barnhart-ca11-2006.