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Robert Howard Swagger v. Michael J. Astrue

February 9, 2011


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



Plaintiff Robert Howard Swagger ("Plaintiff") brings this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying his application for disability insurance benefits ("DIB") and supplemental security income ("SSI") benefits under Titles II and XVI of the Social Security Act ("Act") [42 U.S.C. §§ 401-433, 1381-1383f]. The record has been developed at the administrative level. For the following reasons, the Court finds that the decision of the Administrative Law Judge ("ALJ") is not supported by substantial evidence. Therefore, Plaintiff‟s Motion for Summary Judgment (Docket No. [7]) is GRANTED and the Commissioner‟s Motion for Summary Judgment (Docket No. [9]) is DENIED. Accordingly, the matter is REMANDED for further consideration.


Plaintiff filed an application for DIB and SSI on January 11, 2007, alleging disability due to spinal stenosis, a herniated disc and stomach problems, all beginning on March 19, 2004. (R. at 9). Plaintiff‟s claims were initially denied on June 6, 2007, and a hearing was held before an ALJ on January 8, 2008. (R. 9-51). Plaintiff, along with a Vocational Expert ("VE"), appeared and testified at the hearing. (R. at 17). On January 22, 2008, the ALJ issued a decision finding that Plaintiff had the ability to perform light work and that there were jobs that exist in significant numbers in the national economy that Plaintiff could perform, thereby concluding that Plaintiff was "not disabled" under the Act. (R. at 17-18). On April 8, 2010, the Appeals Council denied Plaintiff‟s request for review thereby making the ALJ‟s decision the final decision of the Commissioner. (R. at 1-3). Having exhausted all administrative remedies, Plaintiff filed this action on June 7, 2010. (Docket No. 1). Plaintiff then filed a Motion for Summary Judgment on November 4, 2010. (Docket No. [7]). The Commissioner filed his Motion for Summary Judgment on December 7, 2010. (Docket No. [9]).


This Court‟s review is plenary with respect to all questions of law. Demczyk v. Astrue, Civ. Act. No. 10-239, 2010 WL 4257599 (W.D.Pa. Oct. 21, 2010) (citing Schaudeck v. Commissioner of Social Security Administration, 181 F.3d 429, 431 (3d Cir. 1999)). With respect to factual issues, judicial review is limited to determining whether the Commissioner‟s decision is "supported by substantial evidence." 42 U.S.C. § 405(g); Caminiti v. Astrue, Civ. A. No. 09-64, 2010 WL 3186697 (W.D.Pa. Aug. 11, 2010) (citing 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 the record. Crawford v. Astrue, Civ. A. No. 08-1160, 2009 WL 1033611 (W.D.Pa. Apr. 15, 2009) (citing Monsour Medical Center v. Heckler, 806 F.2d 1185, 1190-91 (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." Price v. Barnhart, 129 F.App‟x. 699, 700 (3d Cir. 2005). 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." Dominski v. Astrue, Civ A. No. 07-3595, 2008 WL 4589903 (E.D.Pa. Oct. 2008) (citing Hartranft 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). To determine whether a finding is supported by substantial evidence, the district court must review the record as a whole. See 5 U.S.C. § 706.

Judicial review of the Commissioner‟s final decisions on disability claims is governed by statute. 42 U.S.C. §§ 405(g)*fn1 , 1383(c)(3).*fn2 Pursuant to 42 U.S.C. § 405(g), a district court is to review transcripts and records upon which the Commissioner based his determination. 42 U.S.C. § 405(g). Because the standards for eligibility under Title II (42 U.S.C. §§ 401-433, regarding DIB), and judicial review thereof, are virtually identical to the standards under Title XVI (42 U.S.C. §§ 1381-1383f, regarding SSI), regulations and decisions rendered under the Title II disability standard 42 U.S.C. § 423, are pertinent and applicable in Title XVI decisions rendered under 42 U.S.C. § 1381(a). Sullivan v. Zebley, 493 U.S. 521, 525 n. 3 (1990); Burns v. Barnhart, 312 F.3d 113, 119 n. 1 (3d Cir. 2002).

To be eligible for Social Security benefits under the Act, a claimant must demonstrate that he cannot engage in substantial gainful activity because of a medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period for at least twelve months. 42 U.S.C. § 423(d)(1)(A); DeCarlo v. Barnhart, 116 F.App‟x. 387, 3890 (3d Cir. 2004). A claimant is considered to be unable to engage in substantial gainful activity "only if his [or her] physical or mental impairment or impairments are of such severity that he [or she] is not only unable to do his [or her] previous work but cannot, considering his [or 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), 1382c(a)(3)(B). Thus, the ALJ must utilize a five-step sequential analysis when evaluating the disability status of each claimant. 20 C.F.R. § 404.1520. The ALJ must determine: (1) whether the claimant is currently engaged in substantial gainful activity; (2) if not, whether the claimant has a severe impairment or combination of impairments that is severe; (3) whether the medical evidence of the claimant‟s impairment or combination of impairments meets or equals the criteria listed in 20 C.F.R., pt. 404 Subpt. P., Appx. 1; (4) whether the claimant‟s impairments prevent him from performing his past relevant work; and (5) if the claimant is incapable of performing his past relevant work, whether he can perform any other work which exists in the national economy. 20 C.F.R. §404.1520(a)(4); see Barnhart v. Thomas, 540 U.S. 20, 24-25 (2003).

In an action in which review of an administrative determination is sought, the agency‟s decision cannot be affirmed on a ground other than that actually relied upon by the agency in making its decision. In Securities & Exchange Commission v. Chenery Corp., 332 U.S. 194 (1947), the Supreme Court explained:

When the case was first here, we emphasized a simple but fundamental rule of administrative law. That rule is to the effect that a reviewing court, in dealing with a determination or judgment which an administrative agency alone is authorized to make, must judge the propriety of such action solely by the grounds invoked by the agency. If those grounds are inadequate or improper, the court is powerless to affirm the administrative action by substituting what it considered to be a more adequate or proper basis. To do so would propel the court into the domain which Congress has set aside exclusively for the administrative agency.

Id. at 196. The United States Court of Appeals for the Third Circuit has recognized the applicability of this rule in the Social Security disability context. Fargnoli v. Massanari, 247 F.3d 34, 44, n.7 (3d Cir. 2001). Thus, the Court‟s review is limited to the four corners of the ALJ‟s decision against the record.


A.Plaintiff's Personal Background

Plaintiff was born on December 30, 1959. (R. at 23). Plaintiff is 50 years old and has 4 children. (R. at 23, 169). On March 19, 2004, the date on which Plaintiff claims he was injured, he was 44 years old. (R. at 23). Plaintiff has stated that he smokes two packs of cigarettes a day and has done so for 20 years. (R. at 169). Plaintiff has denied the use of recreational drugs. Id. Plaintiff has earned a GED and was employed as a construction laborer and/or manual laborer until March 19, 2004. (R. at 23).

B.Plaintiff's Medical Background

1.Plaintiff's Treatment with Dr. Matt El-Kadi: May 20, 2004

On May 20, 2004, Plaintiff visited Matt El-Kadi, M.D., PhD., for an evaluation regarding his low back pain. (R. at 169). Plaintiff claimed that he developed the onset of low back pain when he was asked to move a stone at his workplace on March 19, 2004. Id. Plaintiff further claimed that the low back pain radiated to the posterior side of his right leg. Id. Plaintiff had no prior history of back problems and no previous radiographic studies before the incident. Id. Dr. El-Kadi indicated that Plaintiff brought with him a lumbar MRI scan dated March 23, 2004 which revealed that Plaintiff had a L5-S1 central to the right disk herniation*fn3 with bilateral L5-S1 foraminal stenosis,*fn4 and a disk/osteophyte*fn5 at the L4-5 and the L3-4 level, with bilateral foraminal narrowing at the L4-5 and L3-4 levels. (R. at 170). The MRI on March 23, 2004 showed demonstrative advanced disc space narrowing with circumferential disc bulging in each of the levels of L3-4, L4-5 and L5-S1. (R. at 163). Specifically, the MRI revealed a moderate narrowing at the L3-L4 level, severe narrowing at L4-5 with displacement of the L4 nerve roots, narrowing to a severe degree on the right at L5-S1 and to a moderate-severe degree on the left. Id. Dr. El-Kadi prescribed conservative treatment which included Motrin and Flexeril, both muscle relaxants, as well as physical therapy and EMG/nerve conduction studies. (R. at 170).

Subsequently, Plaintiff was subscribed Oxycontin and Oxycodone tablets for his back problems.

(R. at 185).

2.Electrodiagnostic Testing: May 21, 2004

On May 21, 2004, Plaintiff underwent electrodiagnostic testing*fn6 after he complained of lower back pain that radiated down his right leg through the calf and into the foot and toes. (R. at 165). Plaintiff stated that he believed this injury stemmed from the lifting of a rock on March 19, 2004. Id. The results showed all nerve and muscles testing within normal limits. (R. at 166-167).

3.Jameson Memorial Hospital: June 3, 2004

On June 3, 2004, Plaintiff was admitted to the emergency room at Jameson Memorial Hospital after he was allegedly assaulted by 6 men. (R. at 176). Plaintiff complained of moderate pain in the left side of his head, left wrist and left ribs. (R. at 176-177). The record indicates that he had a herniated disc. (R. at 177). Tests on Plaintiff‟s ribs and wrist revealed no fracture and no significant radiographic abnormality. (R. at 182-183). Tests on Plaintiff‟s facial bones revealed a fracture of the nasal bone with mild deformity. (R. at 184).

4.Workers' Compensation History Form: June 17, 2004

On June 17, 2004, Plaintiff completed a workers‟ compensation history form in which he indicated that he injured his lower back while lifting a foundation rock. (R. at 220). In addition, Plaintiff stated that he lifted 30 to 350 pounds per day and that he performed this level of lifting all day long while moving rocks. Id.

5.Heritage Valley Medical Center: August 10, 2004 and August 11, 2004

On August 10, 2004, Plaintiff went to the Emergency Department at the Heritage Valley Medical Center in Beaver, Pennsylvania. (R. at 185). Plaintiff claimed that he was nauseated, suffered abdominal pain and that he was unable to keep down his pain medications. Id. Plaintiff was diagnosed with nausea and vomiting and acute narcotic withdrawal. (R. at 186). On August 11, 2004, Plaintiff again visited the Emergency Department at the Heritage Valley Medical Center. (R. at 187). His chief complaints were stomach pains and vomiting. Id. He was diagnosed with acute nausea and vomiting and probable narcotic withdrawal. Id. Plaintiff‟s abdominal problems continued, and he later had a HIDA scan*fn7 performed on July 14, 2006. (R. at 324). This scan revealed that Plaintiff had severe biliary dyskinesia.*fn8 Id.

6.Letter from Dr. Van Edward Scott: February 2, 2005

On February 2, 2005, Plaintiff received a letter from Dr. Van Edward Scott notifying him that he had violated his pain management agreement and that he was discharged from the practice as of February 4, 2005. (R. at 191). At the administrative hearing on January 8, 2008, Plaintiff stated that he had seen Dr. Van Edward Scott for about a year, but that he switched to Dr. James Dambrogio because Dr. Van Edward Scott would never check his back before prescribing pain medication. (R. at 33).

7.Jameson Memorial Hospital: February 3, 2005

On February 3, 2005, Plaintiff was admitted to the emergency room in Jameson Memorial Hospital for nausea, vomiting and abdominal pain. (R. at 243). Testing of the abdomen revealed a non-obstructive bowel gas pattern. Id. Subsequent tests for appendicitis were negative. (R. at 244).

8.Plaintiff's Treatment with Dr. Jonathan McClure: July 11, 2006

On July 11, 2006, Plaintiff was evaluated by Dr. Jonathan K. McClure at Valley Gastroenterology Associates in Beaver Falls, Pennsylvania. (R. at 339). There, Plaintiff reported that he had been experiencing intermittent spells of abdominal pain, nausea and vomiting, but that in between those spells he felt perfectly fine. Id. Plaintiff told Dr. McClure that the spells usually lasted several days. Id. Dr. McClure noted that Plaintiff did not drink anything for a week and all of the sudden he started to experience epigastric pain associated with nausea and vomiting. Id. Dr. McClure indicated that Plaintiff has a history of drug use and that Plaintiff was taking methadone at that point in time. Id. Subsequent drug screening returned positive results for cannabinoids. (R. at 340). Indeed, the medical record indicates that Plaintiff has had a history of narcotic abuse with Oxycontin and marijuana. (R. at 258, 263, 264).

9.Jameson Memorial Hospital: July 25, 2006

On July 25, 2006, Plaintiff was admitted to Jameson Memorial Hospital for abdominal pain. (R. at 258). Plaintiff complained of attacks of nausea and vomiting occurring every 2 to 3 months. Id. Plaintiff had gallbladder surgery and was discharged on the same day. (R. at 255, 271). Plaintiff‟s abdominal problems improved only for a short period of time after his surgery.

(R. at 335). He was then advised to undergo a colonoscopy and endoscopy. Id.

10.Plaintiff's Treatment with Dr. Anthony Elisco and Dr. Roberto Bendoni: November 22, ...

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