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William Mark Smiley v. Michael J. Astrue

March 5, 2012


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



William Mark Smiley ("Plaintiff") brings this action pursuant to 42 U.S.C. § 405(g), seeking review of the final determination of the Commissioner of Social Security ("Defendant" or "Commissioner") denying his application for disability insurance benefits ("DIB") and supplemental security income ("SSI") under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 401 -- 433, 1381 -- 1383f ("Act"). This matter comes before the Court on cross motions for summary judgment. (ECF Nos. 7, 9). For the reasons that follow, both motions will be denied and the matter will be remanded to the Commissioner for further proceedings.


Plaintiff filed for DIB and SSI with the Social Security Administration December 4, 2006, claiming an inability to work beginning July 8, 2006 due to limitations stemming from various physical and mental impairments. (R. at 116 -- 126).*fn1 Plaintiff was initially denied benefits on March 21, 2007. (R. at 81 -- 90). A hearing was scheduled for December 18, 2008, and Plaintiff and a vocational expert testified. (R. at 21 -- 64). The Administrative Law Judge ("ALJ") issued her decision denying benefits to Plaintiff on January 14, 2009. (R. at 7 -- 20). Plaintiff's request for review by the Appeals Council was denied on June 24, 2010, thereby rendering the decision of the ALJ the final decision of the Commissioner. (R. at 1 -- 5). Plaintiff filed his complaint on August 11, 2010 challenging the ALJ's decision. (ECF No. 2). Cross motions for summary judgment followed.


To be eligible for social security benefits under the Act, a claimant must demonstrate to the Commissioner that he or she 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 of at least twelve months. 42 U.S.C. §423(d)(1)(A); Brewster v. Heckler, 786 F.2d 581, 583 (3rd Cir. 1986). When reviewing a claim, the Commissioner must utilize a five-step sequential analysis to evaluate whether a claimant has met the requirements for disability. 20 C.F.R. §§ 404.1520, 416.920.

The Commissioner must determine: (1) whether the claimant is currently engaged in substantial gainful activity; (2) if not, whether the claimant has a severe impairment or a 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, App'x 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). If the claimant is determined to be unable to resume previous employment, the burden shifts to the Commissioner (Step 5) to prove that, given claimant'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. Doak v. Heckler, 790 F.2d 26, 28 (3rd Cir. 1986).

Judicial review of the Commissioner's final decisions on disability claims is provided by statute, and is plenary as to all legal issues. 42 U.S.C. §§ 405(g)*fn2 , 1383(c)(3)*fn3 ; Schaudeck v. Comm'r Soc. Sec., 181 F. 3d 429, 431 (3rd Cir. 1999). Section 405(g) permits a district court to review the transcripts and records upon which a determination of the Commissioner is based; the court will review the record as a whole. See 5 U.S.C. §706. The district court must then determine whether substantial evidence existed in the record to support the Commissioner's findings of fact. Burns v. Barnhart, 312 F.3d 113, 118 (3rd Cir. 2002).

Substantial evidence is defined as "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate" to support a conclusion. Ventura v. Shalala, 55 F.3d 900, 901 (3rd Cir. 1995) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). If the Commissioner's findings of fact are supported by substantial evidence, they are conclusive. 42 U.S.C. § 405(g); Richardson, 402 U.S. at 390. When considering a case, a district court cannot conduct a de novo review of the Commissioner's decision nor re-weigh the evidence of record; the court can only judge the propriety of the decision in reference to the grounds invoked by the Commissioner when the decision was rendered. Palmer v. Apfel, 995 F. Supp. 549, 552 (E.D.Pa. 1998); S.E.C. v. Chenery Corp., 332 U.S. 194, 196 -- 97 (1947). The court will not affirm a determination by substituting what it considers to be a proper basis. Chenery, 332 U.S. at 196 -- 97. Further, "even where this court acting de novo might have reached a different conclusion . . . so long as the agency's factfinding is supported by substantial evidence, reviewing courts lack power to reverse either those findings or the reasonable regulatory interpretations that an agency manifests in the course of making such findings." Monsour Medical Center v. Heckler, 806 F.2d 1185, 90-91 (3rd Cir. 1986).


A.General Background

Plaintiff claimed disability due to alleged anxiety, depression, HIV infection, back pain, gout, and high blood pressure. (R. at 141). Plaintiff claimed that he was precluded from all forms of work primarily by his anxiety and depression. (R. at 141). At the time of his administrative hearing, Plaintiff was forty six years of age. (R. at 26). Plaintiff lived with his sister. (R. at 27). He was divorced and had six children. (R. at 27, 221). His family was unaware of his HIV infection. (R. at 274). Plaintiff had only a tenth grade education, required special educational support, and had behavioral problems. (R. at 27, 335). Plaintiff did receive some technical school training for machine operation; however, he did not receive any diploma or certificate. (R. at 335). Plaintiff had last worked in July 2006 as a mold technician at a plastics company. (R. at 142 -- 43). Prior to that time, he had worked in a variety of other positions for several months to several years at a time. (R. at 143). Plaintiff now subsisted on public assistance. (R. at 28). He had received unemployment compensation for twenty-six weeks following the loss of his last job. (R. at 28).

In his own report of day-to-day functioning, Plaintiff claimed to have lost all interest in hobbies. (R. at 160 -- 70). He did not respond well to criticism, and had difficulty being around others due to paranoia and anxiety regarding his HIV infection. (R. at 160 -- 70). He claimed that close proximity to others made him nervous. (R. at 160 -- 70). He stated that he had been terminated from his previous four jobs due to difficulty meeting attendance requirements. (R. at 160 -- 70). He did not experience difficulty keeping up with his work, however. (R. at 160 -- 70).

Plaintiff did not report any difficulties with personal care, driving, and using public transit, and attested to only some limitation mowing the lawn and carrying grocery bags. (R. at 160 -- 70). He only cooked boxed foods. (R. at 160 -- 70). Plaintiff could engage in continuous activity for approximately twenty minutes before requiring rest. (R. at 160 -- 70). However, he could not recall specific activities in which he engaged that forced him to stop and rest. (R. at 160 -- 70). He could walk approximately two hundred feet, and he could lift up to twenty pounds. (R. at 160 -- 70). He alleged having no energy. (R. at 160 -- 70). He claimed that his back pain interrupted his sleep. (R. at 160 -- 70). However, prescribed medication successfully relieved his pain for up to eight hours, and he did not notice side effects. (R. at 160 -- 70). Plaintiff could not recall attending physical therapy for his back pain. (R. at 160 -- 70). He could ambulate independently, without an assistive device. (R. at 160 -- 70).

B.Medical History

Plaintiff's primary care physician, Lynn L. Cornell, M.D., was primarily responsible for treatment and care of Plaintiff's physical and mental conditions, excluding management and monitoring of his HIV infection. Her earliest records of treatment of Plaintiff date back to February 2005. (R. at 262 -- 64). At that time, Plaintiff was diagnosed with hypertension, gout, and depression, but all were considered to be stable. (R. at 262 -- 64).

Plaintiff returned to Dr. Cornell on March 3, 2005, complaining of worsening depression and anxiety associated with problems with his family. (R. at 264). He claimed to be having difficulty concentrating on his work, and requested an excuse. (R. at 264). Dr. Cornell provided a letter indicating that Plaintiff should remain off of work until March 14, 2005. (R. at 264). She reported in her notes that Plaintiff had been working regularly until his most recent visit. (R. at 264).

Plaintiff was seen again by Dr. Cornell on April 12 and 14, 2005. (R. at 265). He claimed to feel generally unwell: he was nauseated, achy, and anxious. (R. at 265). He was experiencing difficulty with his children and his alcohol intake was increasing. (R. at 265). Dr. Cornell provided Plaintiff with medical excuses to miss work through April 18, 2005. (R. at 265).

No further notes of treatment through Dr. Cornell appeared on the record until February 1, 2006. (R. at 268). Plaintiff returned complaining of gout symptoms in his left knee, ankle, and foot, for significantly increased depression, and for moderate, increasing mid-thoracic back pain. (R. at 268). With respect to his depression, Plaintiff more specifically indicated that he had lost two jobs since his last visit due to depression-related absenteeism, that he was experiencing anxiety attacks up to twice per week, and that he had difficulty interacting with other people. (R. at 268). In terms of his back pain, Plaintiff rated his discomfort as 5 on a pain scale of 10. (R. at 268). He claimed that he could stand for no more than four hours at a time, and sit for no more than ten or fifteen minutes. (R. at 268). His pain interrupted his sleep. (R. at 268).

Dr. Cornell opined that Plaintiff was unable to work at that time. (R. at 268). An injection was administered for Plaintiff's back pain, pain medication was prescribed, and Plaintiff's anti-depressant dosage was increased. (R. at 268). Plaintiff was advised to seek the help of a psychiatrist. (R. at 268).

At a follow-up with Dr. Cornell on February 9, 2006, Plaintiff explained that his gout symptoms decreased significantly, and the anti-inflammatory medication and pain relievers prescribed were very helpful. (R. at 271). Plaintiff's blood pressure was noted to be good. (R. at 271). Plaintiff felt that his depression and anxiety were the same, however. (R. at 271). Dr. Cornell completed an Employability Assessment Form that same day, and stated that Plaintiff was temporarily disabled from all work beginning December 1, 2005 and ending July 31, 2006 as a result of anxiety, depression, back pain, hypertension, and gout. (R. at 270, 272).

An x-ray of Plaintiff's cervical spine on May 14, 2006 indicated that the vertebrae were normal, no compression or fracture was observed, no bony lesions were present, alignment was normal, there was no evidence of subluxation, disc space and size were normal, and the surrounding soft tissue was normal. (R. at 209).

On June 14, 2006, Plaintiff visited Dr. Cornell for a follow-up regarding his hypertension. (R. at 276). Plaintiff was experiencing anxiety and depression, and was seeing a counselor through the Erie County Health Department, as well as a case manager for his HIV infection. (R. at 276). Although Plaintiff was still not working, he was only experiencing some back pain, he had no recurrence of gout symptoms, and his appetite was good. (R. at 276). He was advised to seek psychiatric care for continuing anxiety and depression, particularly as it related to his HIV infection. (R. at 276). Plaintiff informed Dr. Cornell that he was seeking disability benefits. (R. at 276). That same day, Dr. Cornell completed an Employability Reassessment Form, indicating that Plaintiff was temporarily disabled from all work beginning December 1, 2005 and ending December 30, 2006, due to depression, anxiety, gout, hypertension, and back pain. (R. at 277 -- 78).

At an October 5, 2006 check-up, Dr. Cornell assessed the status of Plaintiff's various impairments, and diagnosed him with borderline hypertension, requiring only monitoring, stable anxiety, back pain, and hemorrhoids. (R. at 281). In terms of his anxiety, Plaintiff was again advised to see a counselor, but he was reluctant to do so. (R. at 281). Plaintiff claimed that he had some increased anxiety due to family issues, but that he otherwise felt well. (R. at 281). Plaintiff stated that his back pain had recently increased, but that it was related to his having fallen into a hole. (R. at 281). He had used his prescription medications for this condition sparingly, however. (R. at 281).

Howard Nadworny, M.D., Plaintiff's treating physician for his HIV infection, completed a Medical Report on Adult with Allegation of Human Immunodeficiency Virus (HIV) Infection on December 8, 2006. (R. at 312 -- 14). On it, he noted that Plaintiff's most recent immune system numbers were close to normal. (R. at 312 -- 14). As a result, Plaintiff had not begun HIV-specific treatment. (R. at 312 -- 14). Plaintiff was noted to be generally asymptomatic for HIV infection, at that time. (R. at 312 -- 14).

On February 16, 2007, John J. Kalata, D.O. completed a Medical Source Statement of Claimant's Ability to Perform Work-related Physical Activities on behalf of the Pennsylvania Bureau of Disability Determination. (R. at 318 -- 23). In it, Dr. Kalata indicated that Plaintiff could lift and carry no more than twenty pounds occasionally, and no amount of weight frequently. (R. at 318 -- 23). Plaintiff could stand and walk no more than one or two hours in an eight hour work day. (R. at 318 -- 23). Plaintiff could sit approximately six hours. (R. at 318 -- 23). Pushing and pulling in Plaintiff's upper ...

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