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Harris v. Astrue

May 19, 2010


The opinion of the court was delivered by: Nora Barry Fischer, District Judge



Plaintiff Dennis Harris ("Plaintiff") brings this action pursuant to 42 U.S.C. §405(g), seeking judicial review of the final determination of the Commissioner of Social Security ("Commissioner") denying Plaintiff's application for disability insurance benefits ("DIB") under Title II of the Social Security Act, 42 U.S.C. §§ 401-433. The parties have filed cross motions for summary judgment pursuant to Federal Rule of Civil Procedure 56, and the record has been developed at the administrative level. (Doc. Nos. 6, 8). For the following reasons, the Court will reverse and remand the decision of the ALJ with the direction to award benefits consistent with an onset date of July 9, 2004.


Plaintiff filed his application for DIB on June 1, 2005, alleging disability since July 9, 2004 due to torn quadriceps.*fn1 (R. 35-39, 47). Plaintiff's claim was denied at the initial level on August 10, 2005. (R. 30-33). He requested a hearing before an Administrative Law Judge ("ALJ") on September 25, 2005. (R. 34). A hearing was held on March 15, 2007 before Administrative Law Judge ("ALJ") Douglas Cohen. (R. 273-89). Plaintiff, who was represented by counsel, and Fred Monaco, a vocational expert, testified. Id. On April 12, 2007, the ALJ issued a decision finding that Plaintiff was not disabled within the meaning of the Act. (R. 15-22). The Appeals Council subsequently denied Plaintiff's request for review, thereby making the decision of the Commissioner final in the case. (R. 5-7).

On May 16, 2008, Plaintiff filed a civil action seeking review of the ALJ's decision by this Court. (Harris v. Astrue, Civ. A. No. 08-cv-667). On December 22, 2008, the case was remanded to the Commissioner by this Court for a redetermination of Plaintiff's education level for the purposes of determining the application of Grid Rule 201.17. (R. 324-325). The opinion additionally found error with the ALJ's application of 20 C.F.R. § 404.1656(a) as it applied to Plaintiff's case; specifically finding that Plaintiff's prior work should have been treated as "unskilled." (Id. at 321-324). On April 20, 2007, Plaintiff filed a second application for DIB.

(R. 329). On February 3, 2009, by Order of the Appeals Council, the claims were rendered "duplicate" and remanded to the ALJ for "proceedings consistent" with the opinion and order of this Court. Id.

In response to the order of the Appeals Council, ALJ David Kozma held a second hearing on June 24, 2009 at which Plaintiff, who was represented by counsel, and an impartial vocational expert, George J. Starosta, testified. (R. 481-487). In an opinion dated July 22, 2009, the ALJ again concluded that Plaintiff was not "disabled" within the meaning of the Act. (R. 293-302). Plaintiff responded by commencing the instant action against the Commissioner on October 20, 2009. (Doc. No. 1).


This Court's review is limited to determining whether the Commissioner's decision is supported by substantial evidence. 42 U.S.C. § 405(g); Adorno v. Shalala, 40 F.3d 43, 46 (3d Cir. 1994). The Court may not undertake a de novo review of the Commissioner's decision or re-weigh the evidence of record. Monsour Med. Ctr. v. Heckler, 806 F.2d 1185, 1190 (3d Cir. 1986). Congress has clearly expressed its intention that "[t]he findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive." 42 U.S.C. §405(g). Substantial evidence "does not mean a large or considerable amount of evidence, but rather such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Pierce v. Underwood, 487 U.S. 522, 565, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988). As long as the Commissioner's decision is supported by substantial evidence, it cannot be set aside, even if this court "would have decided the factual inquiry differently." Haranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999). "Overall, the substantial evidence standard is a deferential standard of review." Jones v. Barnhart, 364 F.3d 501, 503 (3d Cir. 2004).

In order to establish a disability under the Act, a claimant must demonstrate a "medically determinable basis for an impairment that prevents [her] from engaging in any 'substantial gainful activity' for a statutory twelve-month period." Stunkard v. Sec'y of Health and Human Servs.,841 F.2d 57, 59 (3d Cir. 1988); 42 U.S.C. §423 (d)(1). A claimant is considered unable to engage in substantial gainful activity "only if [her] physical or mental impairment or impairments are of such severity that [she] is not only unable to do [her] previous work but cannot, considering [her] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. §423 (d)(2)(A).

An ALJ must do more than simply state factual conclusions to support his ultimate findings. Baerga v. Richardson, 500 F.2d 309, 312-13 (3d Cir. 1974). The ALJ must make specific findings of fact. Stewart v. Secretary of HEW, 714 F.2d 287, 290 (3d Cir. 1983). Moreover, the ALJ must consider all medical evidence contained in the record and provide adequate explanations for disregarding or rejecting evidence. Weir on Behalf of Weir v. Heckler, 734 F.2d 955, 961 (3d Cir. 1984); Cotter v. Harris, 642 F.2d 700, 705 (3d Cir. 1981).

The Social Security Administration ("SSA"), acting pursuant to its rule making authority under 42 U.S.C. §405(a), has promulgated a five-step sequential evaluation process to determine whether a claimant is "disabled" within the meaning of the Act. The United States Supreme Court summarized this process as follows:

If at any step a finding of disability or non-disability can be made, the SSA will not review the claim further. At the first step, the agency will find non-disability unless the claimant shows that he is not working at a "substantial gainful activity." [20 C.F.R.] §§ 404.1520 (b), 416.920 (b). At step two, the SSA will find non-disability unless the claimant shows that he has a "severe impairment," defined as "any impairment or combination of impairments which significantly limits [the claimant's] physical or mental ability to do basic work activities." [20 C.F.R.] §§ 404.1520(c), 415.920(c). At step three, the agency determines whether the impairment which enabled the claimant to survive step two is on the list of impairments presumed severe enough to render one disabled; if so, the claimant qualifies. [20 C.F.R.] §§ 404.1520(d), 416.920(d). If the claimant's impairment is not on the list, the inquiry proceeds to step four, at which the SSA assesses whether the claimant can do his previous work; unless he shows that he cannot, he is determined not to be disabled. If the claimant survives the fourth stage, the fifth, and final, step requires the SSA to consider so-called "vocational factors" (the claimant's age, education, and past work experience), and to determine whether the claimant is capable of performing other jobs existing in significant numbers in the national economy. [20 C.F.R. §§ 404.1520(f), 404.1560(c), 416.920(f), 416.960(c).

Barnhart v. Thomas, 540 U.S. 20, 24-5, 124 S.Ct. 176, 157 L.Ed. 2d 333 (2003)(footnotes omitted).

If the claimant is determined to be unable to resume previous employment, the burden shifts to the Commissioner (Step 5) to prove that, given plaintiff's mental or physical limitations, age, education, and work experience, he or she is able to perform substantial gainful activity in jobs available in the national economy. Heckler v. Campbell, 461 U.S. 458, 461, 103 S.Ct. 1952, 76 L.Ed.2d 66 (1983); Stunkard, 842 F.2d at 59; Kangas, 823 F.2d 775, 777 (3d Cir. 1987); Doak v. Heckler, 790 F.2d 26, 28 (3d Cir. 1986).


A. General Background

Plaintiff was born on January 6, 1960, making him forty-nine years of age at the time of the second ALJ's decision. (R. 20, 35, 185). A forty-nine year old is considered a "younger person" under 20 C.F.R. § 404.1563(c). Plaintiff has an eighth grade education. (R. 20, 52, 482). Plaintiff had previously been employed as a cement finisher from 1978 until the onset his the alleged disability. (R. 40). Plaintiff continues to aver July 9, 2004 as the onset of his disability. (R. 35).

B. Medical Evidence Submitted Prior to Initial ALJ Opinion

On July 9, 2004, Plaintiff dropped some wood while at work, which caused him to lose his balance and fall. (R. 101). The wood hit Plaintiff and he tore both of his quadriceps tendons. (R. 101). On the same day as the incident, Plaintiff had x-rays taken of his knees in the emergency room and he was placed into the care of Dr. Michael Gaffney, an orthopedic surgeon. (R. 106-7). Dr. Gaffney performed a bilateral quadriceps tendon repair on July 10, 2004. (R. 104-5). After two months of treatment, Plaintiff was no longer using a wheelchair and began outpatient physical therapy. (R. 139). On November 11, 2004, Plaintiff was no longer wearing leg braces on a daily basis and Dr. Gaffney suggested that he look into some sort of vocational training as he felt it ...

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