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Rupard v. Astrue

June 16, 2009


The opinion of the court was delivered by: Surrick, J.


Presently before the Court is an action brought by Plaintiff Ira E. Rupard III ("Plaintiff") under 42 U.S.C. § 405(g) to review the decision of the Commissioner of Social Security ("Commissioner") denying Plaintiff's claim for Disability Insurance Benefits ("DIB"). For the following reasons, we will adopt the Report and Recommendation of United States Magistrate Judge Elizabeth T. Hey and remand the case to the Commissioner for further proceedings consistent with the Report and Recommendation and this Memorandum Opinion.


A. Procedural Background

Plaintiff filed for DIB on March 15, 2004, claiming that he was disabled as of January 30, 2001. (R. 46.) Plaintiff's insured status expired on September 30, 2001. (Id. at 17.) After Plaintiff's application was denied on February 25, 2005 (id. at 28-31), Plaintiff requested an administrative hearing (id. at 32). A hearing was held on May 24, 2006. (Id. at 216-32.) On August 3, 2006, the administrative law judge ("ALJ") issued a decision concluding that Plaintiff was not disabled. (Id. at 17-24.) Plaintiff appealed the decision and submitted additional evidence, including medical records, from Dr. Thomas Whalen, M.D., which the Appeals Council made a part of the record. (Id. at 8.) On August 10, 2007, the Appeals Council denied Plaintiff's request for review.*fn1 (Id. at 4-6.)

On June 28, 2007, Plaintiff filed a Complaint seeking review of the unfavorable decision. (Doc. No. 1.) Plaintiff filed a Brief and Statement of Issues in Support of his Request for Review (Doc. No. 6) and the Commissioner filed a response in opposition (Doc. No. 9), to which Plaintiff filed a reply (Doc. No. 10). On February 13, 2008, pursuant to Local Rule 72.1 and 28 U.S.C. § 636(b), we referred the matter to Magistrate Judge Hey for a Report and Recommendation. (Doc. No. 11.) On August 27, 2008, Magistrate Judge Hey filed a Report and Recommendation recommending that the case be remanded to the Commissioner for further proceedings. (Doc. No. 12.) The Commissioner filed Objections on September 9, 2008. (Doc. No. 13.) The Commissioner argues that (1) Magistrate Judge Hey based her recommendation for remand "upon an impermissible re-weighing of the evidence" (id. at 2) and (2) Magistrate Judge Hey's "recommendation that the ALJ further consider the evidence of [Plaintiff's] hand impairment is not based on objective evidence of an impairment" (id. at 5). Plaintiff filed a response to the Commissioner's Objections. (Doc. No. 15.) The matter is now ripe for review.

B. Factual Background*fn2

Plaintiff was 38 years old at the time of his alleged onset of disability. He has a ninth-grade education (R. 104) and a work history of house painting and home improvement (id. at 62-63). In his DIB application, Plaintiff reported having rheumatoid arthritis that limited the use of both of his hands for holding and gripping objects. (Id. at 61-62.) Rheumatologist John S. Bomalaski, M.D., examined Plaintiff in February 2000 and diagnosed him as having "[b]ilateral hand degenerative arthritis, primarily at the thumb." (Id. at 115.) Dr. Bomalaski also noted that Plaintiff "does have a positive rheumatoid factor, but does not have active synovitis. Approximately 5-10% of the population has a positive rheumatoid factor, which are false positive tests." (Id.) Examination of radiographs taken of Plaintiff's hands on January 26, 2000, showed "[n]o significant radiographic abnormality on either side." (Id. at 99.) However, Dr. Bomalaski found that these X-rays "demonstrated degenerative arthritis." (Id. at 112.) Dr. Bomalaski reported in January 2004 that a physical examination of Plaintiff's hands "demonstrates Hand Heberden's and Bouchard's nodes. There is no active synovitis at the hands." (Id.)

On August 20, 2004, Dr. Bomalaski completed an Arthritis Impairment Questionnaire. (Id. at 117-23.) Dr. Bomalaski reported Plaintiff's diagnosis of hand degenerative arthritis as a permanent problem. (Id. at 117.) Dr. Bomalaski also reported reduced grip strength in both hands (id. at 117), swelling at the hand interphalangeal joints (id. at 118), chronic hand pain (id. at 118-19), and degenerative arthritis in the hands shown in the X-rays from January 26, 2000 (id. at 118). Dr. Bomalaski advised that Plaintiff could occasionally lift and carry five to ten pounds. (Id. at 120.) The doctor also reported that Plaintiff has "significant limitations in doing repetitive reaching, handling, fingering [and/or] lifting" (id. at 122), and that Plaintiff would have moderate limitations during the work day in grasping / turning / twisting objects and in using fingers / hands for fine manipulations (id.). Dr. Bomalaski advised that the symptoms and limitations that he described in the questionnaire began in 1985, but were "most prominent by 2000." (Id. at 123.)

On October 27, 2004, Dr. Thomas Whalen began treating Plaintiff. (Id. at 162.) Dr. Whalen completed a Rheumatoid Arthritis Impairment Questionnaire on November 5, 2005. (Id. at 162-68.) Dr. Whalen reported that Plaintiff had 50% reduced grip strength (id. at 163), constant pain in his hands (id. at 164), and could only occasionally lift and carry five to ten pounds (id. at 166). These symptoms began at least in 2000, but probably as early as 1985, according to Dr. Whalen. (Id. at 168.) Dr. Whalen's medical records and treatment notes, dated October 27, 2004, through September 6, 2006, reveal diagnoses of arthritis in Plaintiff's hands.

(Id. at 177-96.) Dr. Whalen completed a second Rheumatoid Arthritis Impairment Questionnaire on January 24, 2007. (Id. at 204-10.) The ALJ did not have access to the majority of Dr. Whalen's medical records when making his decision.*fn3


Under 42 U.S.C. § 405, a district court "shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing." 42 U.S.C. § 405(g). This Court reviews de novo objections to the Magistrate Judge's Report and Recommendation. 28 U.S.C. § 636(b)(1)(C). The factual findings of the Commissioner must be accepted as conclusive, however, if they are supported by substantial evidence. Richardson v. Perales, 402 U.S. 389, 390 (1971) (citing 42 U.S.C. § 405(g)). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. at 401 (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); see also Dobrwolsky v. Califano, 606 F.2d 403, 406 (3d Cir. 1979). If the conclusion of the ALJ is ...

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