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Estrella v. Astrue

March 2, 2010

CESAR ESTRELLA
v.
MICHAEL J. ASTRUE



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

MEMORANDUM

Plaintiff Cesar Estrella filed this action, seeking judicial review of the decision of Defendant, Social Security Commissioner Michael Astrue ("Commissioner"), which denied his claim for Social Security Disability ("DIB") benefits. After Plaintiff filed his Brief and Statement of Issues in Support of Request for Review, we referred the matter to Magistrate Judge David R. Strawbridge, who issued a Report and Recommendation ("R & R") that Plaintiff's Request for Review be denied and that judgment be entered in favor of the Commissioner. Plaintiff has now filed timely objections to the R & R. For the reasons that follow, we overrule Plaintiff's objections and approve and adopt Magistrate Judge Strawbridge's R & R.

I. BACKGROUND

This case comes to us with a lengthy procedural history, which Magistrate Judge Strawbridge recounted in great detail in a Report and Recommendation in an earlier related case. See Estrella v. Barnhart, Civ. A. No. 05-5800 (E.D. Pa. Jan. 31, 2008) (Docket No. 15). Plaintiff applied for disability benefits on August 19, 1999, alleging a disability onset date of October 6, 1992. (R. 469.) He previously worked as a machine operator, and alleges that he is disabled as a result of a work-related incident that caused him to suffer a left brachial plexus injury in October 1989. (R. 230, 255.) Following the injury, Plaintiff suffered headaches and pain in his chest, neck, shoulder, and back when using his left hand for lifting or other work activities. (R. 230.) Plaintiff also alleges that when he experienced this pain, he had to rest and sometimes became dizzy, and that his medication made him restless. (R. 201-03.) Plaintiff last met the earnings requirement for benefits on December 31, 1995. (R. 752.)*fn1

Administrative Law Judge ("ALJ") Peter V. Train held an administrative hearing on June 21, 2000, and issued a decision unfavorable to Plaintiff on September 29, 2000. (R. 14-19.) Plaintiff timely filed a civil action, and upon a joint motion of Plaintiff and the Commissioner, we remanded for further administrative proceedings to clarify Plaintiff's limitations and obtain additional vocational expert ("VE") testimony. (R. 514-16.) On remand, ALJ Gerald J. Spitz held a hearing and, on January 20, 2004, he again issued a decision unfavorable to Plaintiff. (R. 484-88.) Plaintiff again sought review, and the Appeals Council remanded to the ALJ on May 17, 2004, with specific instructions that the ALJ consider Plaintiff's subjective complaints and maximum residual functional capacity, provide rationales for his treatment of the evidence, and obtain supplemental evidence from a VE if necessary. (R. 607-09.) ALJ Spitz issued a second unfavorable decision on May 19, 2005.

(R. 493-98.)

Plaintiff then filed a second civil action, but while preparing for review, the Commissioner filed a motion for remand after determining that it was unable to produce a complete administrative record due to defects in the recording of Plaintiff's second administrative hearing before ALJ Spitz. (Civ. A. No. 05-5800, Docket No. 6.) We stayed the federal action and remanded for a new hearing, which ALJ Paula Garrety conducted on May 23, 2006. (R. 726-42.) At the hearing, ALJ Garrety took testimony from Plaintiff, his wife, and a VE. The ALJ issued yet another decision unfavorable to Plaintiff on June 26, 2006, and the Appeals Council declined review. (R. 468-75, 459-60.) We then referred the matter to Magistrate Judge Strawbridge, who recommended that the decision below be vacated and the matter remanded for further proceedings due to the ALJ's failure to account for a March 8, 2005 report from Dr. Robert Schwartzman, one of Plaintiff's treating physicians, which indicated that Plaintiff was unable to perform sedentary work on a full-time basis during the relevant period. (Civ. A. No. 05-5800, Docket No. 15; R. 719.) We approved and adopted Magistrate Judge Strawbridge's R & R and remanded the matter to the Appeals Council, which reassigned the case to ALJ Garrety.*fn2 (Civ. A. No. 05-5800, Docket No. 20; R. 762-65.) At a hearing on August 5, 2008, ALJ Garrety heard argument from Plaintiff's counsel, and briefly asked Plaintiff about his treating physicians. (R. 767-71.) Although a VE attended the hearing, Plaintiff's counsel did not question Plaintiff or the VE. (Id.)

ALJ Garrety issued a decision unfavorable to Plaintiff on September 5, 2008. In that decision, she stated that she understood the sole issue on remand to be "the analysis of, and assignment of weight to, the March 8, 2005 opinion of Dr. Schwartzman" (R. 753), but she nevertheless followed the entire five-step sequential evaluation process specified in 20 C.F.R. § 404.1502(a). (R. 752-57.) In doing so, she first determined that Plaintiff's brachial plexus injury to the left upper extremity constituted a severe impairment. (R. 753.) She then declined to credit Dr. Schwartzman's 2005 opinion that Plaintiff was unable to perform full-time sedentary work, and found, to the contrary, that Plaintiff had a residual functional capacity ("RFC") for a range of sedentary work. (R. 753-55.) Considering Plaintiff's age, education, and work experience, the ALJ determined that Plaintiff was not disabled during the relevant time period and therefore was not entitled to benefits. (R. 755-57.) The Appeals Council denied Plaintiff's request for review on November 15, 2008 (R. 743), and Plaintiff sought review in this Court.

Plaintiff argues in the Request for Review that ALJ Garrety (1) improperly retained jurisdiction over his claim contrary to the policy set forth in Section I-2-1-55 of the Hearings, Appeals and Litigation Law Manual, commonly referred to as "HALLEX"; (2) erroneously rejected Dr. Schwartzman's 2005 medical opinion; and (3) improperly relied on testimony of the VE that was based on a hypothetical question that failed to incorporate all of Plaintiff's limitations. The Magistrate Judge recommends that we reject all three arguments, and Plaintiff has filed objections to the R & R, re-asserting that the three arguments are meritorious. He therefore requests that we sustain his objections, reject the Magistrate Judge's R & R, vacate the ALJ's decision, and remand the case to the Commissioner for the award of benefits.

II. LEGAL STANDARD

Judicial review of the Commissioner's final decision is limited, and the ALJ's findings of fact will not be disturbed if they are supported by substantial evidence. Jones v. Barnhart, 364 F.3d 501, 503 (3d Cir. 2004) (citing Schaudeck v. Comm'r of Soc. Sec. Admin., 181 F.3d 429, 431 (3d Cir. 1999)). Substantial evidence is defined as "'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir. 2005) (quoting Reefer v. Barnhart, 326 F.3d 376, 379 (3d Cir. 2003)). "It is more than a mere scintilla of evidence but may be less than a preponderance." Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988) (citing Stunkard v. Sec. of Health and Human Servs., 841 F.2d 57, 59 (3d Cir. 1988)). The ALJ's legal conclusions are subject to plenary review. Schaudeck, 181 F.3d at 431.

We conduct a de novo review of those portions of a Magistrate Judge's report and recommendation to which objections are made. 28 U.S.C. § 636(b)(1). We may accept, reject, or modify, in whole or in part, the Magistrate Judge's findings or recommendations. Id.

III. DISCUSSION

A. Whether ALJ Garrety Improperly Retained ...


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