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Bryan v. Astrue

March 12, 2009

THOMAS L. BRYAN, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY DEFENDANT.



The opinion of the court was delivered by: Judge Caputo

MAGISTRATE JUDGE MANNION

MEMORANDUM

Plaintiff, Thomas L. Bryan, brought this action for disability benefits pursuant to 42 U.S.C. § 405(g) and 42 U.S.C. § 1383(c)(3) on November 20, 2007, claiming that the Social Security Commissioner's denial of Plaintiff's claim for Disability Insurance Benefits ("DIB") under Titles II and XVI of the Social Security Act was not supported by substantial evidence.

42 U.S.C. §§ 401-433; 42 U.S.C. §§ 1381-1383(f). (Compl. ¶¶ 2, 7, Doc. 1.) The matter currently before the Court is Magistrate Judge Malachy E. Mannion's Report and Recommendation of October 15, 2008, recommending that the appeal be denied. (Report, Doc. 10.) Plaintiff enumerated four (4) objections in response to the Report and Recommendation (Objections, Doc. 14) and provided the Court with a corresponding Brief in Support (Doc. 15). Defendant filed a Brief in Response on November 11, 2008 (Doc. 15) and Plaintiffs filed their Reply Brief on December 3, 2008. Accordingly, the matter has been fully briefed by all parties and is ripe for disposition. As the Court finds that the Administrative Law Judge's ("ALJ") determinations are supported by substantial evidence, the Court will deny Plaintiff's objections, and adopt Magistrate Judge Mannion's Report and Recommendation denying the appeal.

BACKGROUND

Plaintiff filed an application for disability benefits under Titles II and XVI of the Social Security Act on November 1, 2004 alleging an inability to engage in substantial gainful employment as of April 13, 2003. (R. 134-137.) The Plaintiff's claims were initially denied and a hearing was held before Administrative Law Judge Douglas A. Abruzzo ("ALJ") on July 13, 2006 and continued until January 18, 2007. (R. 30, 32-33.) On March 13, 2007, the ALJ issued a decision denying Plaintiff's claims. (R. 16-29.) Plaintiff timely filed a request for review with the Appeals Council on May 12, 2007. (R. 13-15.) On September 17, 2007 this request was denied by the Appeals Counsel. (R. 5-7.) On November 20, 2007 the Plaintiff filed an action with this Court pursuant to 42 U.S.C. § 405(g) seeking review of the denial of his application for disability benefits. (Compl., Doc. 1.) The case was referred to Magistrate Judge Mannion on November 21, 2007. (Nov. 11, 2007 Order, Doc. 2.) After Plaintiff and Defendant had the opportunity to submit briefs, Judge Mannion issued a report and recommendation on October 15, 2008 recommending that the Plaintiff's Complaint be denied. (Report, Doc. 10.) After receiving an extension of time to file, Plaintiff filed Objections to the Report and Recommendation (Doc 14) along with a supporting brief (Doc. 15) on November 18, 2008. On November 26, 2008, the Defendant filed a Response and Brief in Response to Plaintiff's Objections (Doc. 16) and on December 3, 2008, Plaintiff filed his Reply Brief (Doc. 17).

The Plaintiff was fifty-nine (59) years old at the onset of the alleged disability, sixty-one (61) years old at the time of his initial administrative filing and was sixty-three (63) years old at the time of the administrative hearing. (R. 132, 43.) Plaintiff completed high school and has past relevant work experience as a production control/shipping clerk, packing machine operator and as a tester. (R. 44, 85, 159.) In his administrative complaints, the Plaintiff alleged disability based on numerous impairments involving his lower back, wrists in both arms, fingers, left elbow, both feet and ankles, eyesight, and lingering problems from coronary bypass surgery and stroke. (R. 53-65, 152-152.) The Plaintiff has also experienced impairments in his short-term memory and ability to concentrate. (R. 170-173.)

At the administrative hearing held on January 18, 2007, the Plaintiff testified that at the time he stopped working in April 2003 his most serious impairment was lower back pain that had been aggravated by an automobile accident in September 2002. (R. 53-54.) The Plaintiff had also suffered a head injury and a concussion in this accident. (R. 316.) The Plaintiff also testified that he had impairments in both of his wrists, hands, and fingers due to several fractures and severe arthritis. (R. 55.) Plaintiff further testified that he had fractured his left elbow and that, at the time he stopped working, he was experiencing complications from diabetes which caused pain and swelling in his feet and ankles and made it difficult for him to walk. (R. 55, 56.) The Plaintiff also noted that he was experiencing issues with his eyesight due to glaucoma. (R. 56-57.) The Plaintiff has a history of high blood pressure, and in 1995 had coronary bypass surgery during which surgery he suffered a stroke. (R. 59-60, 63, 285.) The Plaintiff also stated that following his auto accident in September 2002, he has experienced a ticking sound in his left ear that has made it difficult for him to sleep more than two or three hours per night. (R. 64, 171, 271-272.)

Plaintiff testified that these impairments impacted his ability to perform ordinary tasks both at home and at work. He testified that he had difficulty tying his shoes, fastening buttons and using zippers because of the pain, swelling, and numbness in his wrists, hands and fingers. (R. 65, 170.) He also had difficulty holding pieces of paper, and often dropped them because he could not feel them in his hands. (R. 77-78.) Plaintiff was able only to pick up small objects with his left, non-dominant hand. (R. 78) Because of these problems with his wrists, hands and fingers, and also because of the continuing impairments to his lower back, the Plaintiff stated that he was unable to do things such as sweep, mop or vacuum a floor, do laundry, take out garbage, mow the lawn, trim hedges or cut flowers. (R. 66-69, 168-169.) Plaintiff added that, due to the pain and loss of dexterity in his hands, he was unable to pursue his hobbies of woodworking and hunting. (R. 72, 82-83, 169.)

Throughout the administrative proceedings, the Plaintiff produced several medical records and opinions from his treating physicians. This evidence details the various treatment regimens that Plaintiff has pursued for his back impairments (R. 386-387, 401, 406, 411-423, 476, 494-498) and the impairments to his arms, wrists, hands and fingers (R. 323, 425-430, 486, 490-493).

Vocational Expert ("VE"), Mitchell Schmidt, testified at the administrative hearing on January 18, 2007 concerning the nature of work typically performed in the positions previously held by the Plaintiff. (R. 84-98.) The VE based his testimony on his understanding of essential job duties, as described in The Dictionary of Occupational Titles, for the positions that Plaintiff had previously held. The VE, thus, classified Plaintiff's past position as a Production Control Person as the equivalent of a shipping clerk, a light duty, semi-skilled position (R. 85-86), stated that Plaintiff's position as a Packing Machine Operator was a medium duty, unskilled position (R. 86), and stated that Plaintiff's position as an Electronics Tester was a light duty, semi-skilled position (R. 86-87). The VE further noted that some of the duties that the Plaintiff had described in his testimony, such as lifting certain objects, pushed the duties of the Production Control and Electronics Tester positions into the medium duty range. The ALJ examined the VE with a series of hypothetical questions and the VE testified that the Plaintiff would be capable of performing in his prior positions of Production Control Person, Packing Machine Operator, and Tester. (R. 87-89.)

On March 13, 2007, the Administrative Law Judge issued a decision denying Plaintiff's benefits based on the ALJ's review of Plaintiff's medical history and testimony presented at the administrative hearing. (R. 19-29.) After his timely appeal of the ALJ's decision was denied by the Appeals Council, Plaintiff filed a Complaint in this Court seeking review of the ALJ's decision. After the case was referred to Magistrate Judge Mannion, Plaintiff argued that the ALJ had made four (4) errors when denying Plaintiff's disability benefits. First, Plaintiff argued that the substantial evidence of the record did not support the ALJ's finding that Plaintiff's wrist and hand pain did not constitute a severe impairment. Second, Plaintiff argued that the ALJ committed reversible error when he rejected the opinion of Plaintiff's treating physician. Third, Plaintiff argued that the substantial evidence of the record did not support the ALJ's determination that Plaintiff's subjective testimony was not fully credible. And finally, Plaintiff argued that the ALJ erred when it relied upon the Vocational Expert's opinion that Plaintiff can perform the work in his past positions because the Vocational Expert gave this opinion in response to a question not incorporating all of Plaintiff's impairments. Magistrate Judge Mannion reviewed each of these arguments and the corresponding documentation and testimony from the administrative proceedings and, on October 15, 2008, issued a Report and Recommendation that Plaintiff's appeal be denied and finding that substantial evidence supported the ALJ's decision on all four of these issues.

Plaintiff filed his Objections to the Magistrate Judge's Report and Recommendation on November 18, 2008. (Doc. 14.) In his objections, Plaintiff first argues that the Magistrate Judge failed to apply the correct standard for assessing the treating physician's opinion with respect to Plaintiff's wrist and hand impairments. (Id. ¶ 1.) Second, the Plaintiff argues that the Magistrate Judge erred when finding that substantial evidence supported the ALJ's recommendation with respect to the weight that should be afforded to the opinion offered by the Plaintiff's treating physician. (Id. ¶ 2.) Third, the Plaintiff argues that the Magistrate Judge erred when finding that substantial evidence supported the ALJ's determination that the Plaintiff's testimony was not fully credible. (Id. ¶ 3.) And finally, Plaintiff argues that the Magistrate Judge erred when determining that the ALJ's questioning of the Vocational Expert during the administrative hearing did incorporate all of Plaintiff's various impairments, even though Plaintiff's wrist impairments were not included as part of this questioning. (Id. ¶ 4.) The Plaintiff filed a supporting brief on November 18, 2008 (Doc. 15), and Defendant filed a Response and supporting brief on November 11, 2008 (Doc. 16). Plaintiff filed his Reply Brief (Doc. 17) on December 3, 2008.

STANDARD OF REVIEW

A. Review of Magistrate Judge's Report and Recommendation

Where objections to the magistrate judge's report are filed, the Court must conduct a de novo review of the contested portions of the report, Sample v. Diecks, 885 F.2d 1099, 1106 n.3 (3d Cir. 1989) (citing 28 U.S.C. § 636(b)(1)(c)), provided the objections are both timely and specific, Goney v. Clark, 749 F.2d 5, 6-7 (3d Cir. 1984). In making its de novo review, the Court may accept, reject, or modify, in whole or in part, the factual findings or legal conclusions of the magistrate judge. See 28 U.S.C. § 636(b)(1); Owens v. Beard, 829 F. Supp. 736, 738 (M.D. Pa. 1993). Although the review is de novo, the statute permits the Court to rely on the recommendations of the magistrate judge to the extent it deems proper. See United States v. Raddatz, 447 U.S. 667, 675-76 (1980); Goney, 749 F.2d at 7; Ball v. United States Parole Comm'n, 849 F. Supp. 328, 330 (M.D. Pa. 1994). Uncontested portions of the report may be reviewed at a standard determined by the district court. See Thomas v. Arn, 474 U.S. 140, 154 (1985); Goney, 749 F.2d at 7. At the very least, the Court should review uncontested portions for clear error or manifest injustice. See, e.g., Cruz v. Chater, 990 F. Supp. 375, 376-77 (M.D. Pa. 1998).

B. Review of Social Security Administration's Findings

The factual findings of the Social Security Administration must be deemed conclusive unless the reviewing court finds that they are not supported by substantial evidence. 42 U.S.C. § 405(g); Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981). Substantial evidence means "such relevant evidence as a reasoning mind might accept as adequate to support a conclusion." Lewis v. Califano, 616 F.2d 73, 76 (3d Cir. 1980); 42 U.S.C. s 405(g)." Id. Substantial evidence is more than a mere scintilla of evidence but less than a preponderance. Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988). Substantial evidence has also been described as enough evidence to withstand a directed verdict motion where the disputed proposition is one of fact for the jury. See NLRB v. Columbian Enameling & Stamping Co., 306 U.S. 292, 300, 59 S.Ct. 501, 505 (1939); Olsen v. Schweiker, 703 F.2d 751, 753 (3d Cir. 1983).

A single piece of evidence is not substantial evidence if the Commissioner ignores countervailing evidence or fails to resolve a conflict created by this evidence. Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir. 1993). However, in an adequately developed factual record, substantial evidence may be "something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent [the decision] from being supported by substantial evidence." Consolo v. Federal Maritime Comm'n, 383 U.S. 607, 620 (1966).

To facilitate review of the Commissioner's decision under the substantial evidence standard, the Commissioner's decision must be accompanied by "a clear and satisfactory explication of the basis on which it rests." Cotter, 642 F.2d at 704. Conflicts in the evidence must be resolved and the Commissioner must indicate which evidence was accepted, which evidence was rejected, and the reasons for rejecting that evidence. Id. at 706-07. In determining if the Commissioner's decision is supported ...


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