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Linn H. Lewis v. Michael J. Astrue

April 11, 2012

LINN H. LEWIS, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



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

MEMORANDUM

Plaintiff, Linn H. Lewis, seeks judicial review, under 42 U.S.C. § 405(g), of the final decision of the Commissioner of Social Security (the "Commissioner") denying his claim for disability insurance benefits under Title II of the Social Security Act. Plaintiff filed for disability insurance benefits on November 24, 2008, alleging disability as of June 1, 2005. He also filed a concurrent application for Supplemental Security Income ("SSI") under Title XVI of the act. Although plaintiff was found to be disabled as of November 24, 2008, and was thus awarded SSI benefits, the Commissioner determined that plaintiff was not disabled before December 31, 2007, the date on which he was last insured for disability benefits, and thus concluded that he was not eligible for disability insurance benefits. At issue here is whether substantial evidence supports the Commissioner's decision that plaintiff was not disabled before December 31, 2007. I referred the matter to Magistrate Judge Linda K. Caracappa, who submitted a report and recommendation recommending that I affirm the Commissioner's decision. Plaintiff has now filed objections to the magistrate judge's report. For the reasons that follow, I will overrule plaintiff's objections and affirm the final decision of the Commissioner.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On November 24, 2008, plaintiff, who was forty-four years old at the time, filed applications for both disability insurance benefits and SSI, alleging disability as a result of chronic pancreatitis,*fn1 gastrointestinal problems, and fibromyalgia.*fn2 (R. 12, 22, 111, 115.) He claimed that he became disabled on June 1, 2005, around the time that he was diagnosed with pancreatitis, and that he had not worked since then.

Plaintiff's medical records reveal that plaintiff was diagnosed with diverticulitis in October 1997, after being hospitalized with abdominal pain.*fn3 (R. 587--593.) After several recurrences, plaintiff underwent a sigmoid colon resection for chronic diverticulitis on March 16, 1998. (R. 572--574.)

The record does not contain evidence of further gastrointestinal problems until June 8, 2005, when plaintiff was admitted to St. Luke's Quakertown Hospital after the sudden onset of severe abdominal pain. (R. 234.) He was diagnosed with pancreatitis, caused by alcohol use, and discharged from the hospital on June 15, 2005. (R. 230.) He was prescribed pancreatic enzymes, although apparently he could not afford the prescription. (R. 221.) He also began taking Percocet on and off for pain relief. (R. 37, 221.) In a follow-up visit with his gastroenterologist, Dr. Jerome M. Burke, on July 5, 2005, plaintiff reported some continued pain and other symptoms.

(R. 221.) But he subsequently failed to appear for an August 16, 2005, appointment with Dr. Burke (R. 246), and the record contains no further evidence of medical treatment for his pancreatitis until February 7, 2007, when a CT scan showed an enlarging pancreatic pseudocyst but no pancreatic inflammation.*fn4 (R. 217.)

On July 20, 2007, plaintiff was again admitted to St. Luke's Quakertown Hospital after reporting two days of abdominal pain and nausea. (R. 209.) He reportedly acknowledged alcohol binges and stated that his last drink had been about five days earlier. (Id.) Plaintiff was diagnosed with acute pancreatitis with pseudocyst formation and was placed on intravenous fluids and pain medication. (R. 293--294.) By the time he was discharged after nine days in the hospital, he was tolerating food without nausea or pain and no longer required pain medication. (Id.)

Plaintiff was hospitalized several more times in 2008. On January 23, 2008, plaintiff was admitted to St. Luke's after having complained of "worsening epigastric pain with nausea [and] vomiting" and "a poor appetite" beginning on January 20, 2008. (R. 195.) He was transferred to Thomas Jefferson University Hospital on January 29, 2008, for certain tests and procedures.

(R. 652--653.) While plaintiff was hospitalized, one of his doctors completed a Pennsylvania Department of Public Welfare "employability assessment" form, in which the doctor checked the box corresponding to the statement that plaintiff "is currently disabled due to a temporary condition . . . preclud[ing] any gainful employment." (R. 559.) The doctor noted that the temporary disability began on January 23, 2008, and was expected to last until April 1, 2008. (Id.) Plaintiff was discharged from the hospital on February 1, 2008. (R. 652.)

Plaintiff was admitted to the hospital again on November 3, 2008, complaining of "five days of worsening upper abdominal pain with nausea." (R. 490.) Plaintiff reportedly had been "doing well" until then and was not taking any medication at the time. (R. 497.) After various tests were performed and "[g]allbladder sludge was noted," a laparoscopic cholecystectomy was performed on November 7, 2008, "to prevent further episodes of acute pancreatitis."*fn5 (R. 474; see also R. 484--486.)

About a month later, plaintiff went to the emergency room complaining of "intractable pain exacerbated by eating" and was admitted to St. Luke's on December 3, 2008. (R. 463--464.) A follow-up MRI of his abdomen had been performed a week earlier and showed chronic pancreatitis as well as a reaccumulation of his pancreatic pseudocyst. (R. 463.) Plaintiff reportedly was not taking his pancreatic enzymes as directed because he could not afford the medication, and he reported needing "two to three Percocet daily to alleviate his pain." (R. 468.) Plaintiff was transferred to Thomas Jefferson University Hospital on December 7, 2008, for "further workup." (R. 639.) After various procedures, including endoscopic drainage of the pancreatic pseudocyst, plaintiff was discharged on December 13, 2008. (R. 640.)

Meanwhile, on November 24, 2008, plaintiff filed applications for both disability insurance benefits and SSI. He claimed that he was "sick all of the time" and had "horrible pain in [his] abdomen." (R. 115.) He also claimed that he had "extreme fatigue" and was not "eating right" because he was "nauseated all of the time" and had "terrible pain" when he ate. (Id.) He thought that he could probably lift 50 pounds but reported that his condition affected his ability to sit, stand, walk, climb stairs, squat, bend, reach, and kneel. (R. 128.) He also explained that it was "impossible to seek gainful employment" because he did not know when he would be "hospitalized again after so many times since 2005." (R. 130.)

In connection with plaintiff's disability application, plaintiff was examined by a consulting state-agency physician, Dr. Singer, on March 20, 2009. Dr. Singer reported that plaintiff "continues to have nausea on a daily basis" and "continues to have pain especially after eating." (R. 661--662.) He advised that plaintiff was to "limit lifting and carrying to 20 pounds occasionally and limit standing and walking to three hours out of an eight-hour period." (R. 664.) He found "[n]o limitations on sitting" or on "pushing and pulling." (Id.) He also recommended that plaintiff "limit bending to occasional kneeling, stooping, and crouching." (Id.)

After reviewing plaintiff's records, a state-agency medical consultant assessed plaintiff's residual functional capacity as of December 31, 2007. He determined that, as of that date, plaintiff could frequently lift or carry 10 pounds and could occasionally lift or carry 20 pounds; could stand or walk about six hours in an eight-hour workday, could sit about six hours in an eight-hour workday; had no limitations on his ability to push or pull; and could occasionally climb, balance, stoop, kneel, crouch, and crawl. (R. 678--683.)

Plaintiff was found to be disabled as of the date of his application, November 24, 2008, and was awarded SSI benefits. (R. 22.) But the Social Security Administration denied plaintiff's application for disability insurance benefits on April 21, 2009, finding that plaintiff's condition was not disabling before December 31, 2007, when his insured status expired.*fn6 (R. 12, 52.) Plaintiff timely filed a request for a hearing (R. 57), and a hearing was held before an administrative law judge ("ALJ") on April 8, 2010 (R. 12). Plaintiff, who was represented by counsel, testified at the hearing, as did a vocational expert and plaintiff's girlfriend. (R. 21--22.)

By the time of the hearing, additional evidence had been added to the record, namely, a "gastritis/irritable bowel syndrome" medical-assessment form completed by Dr. Shashin Shah, one of plaintiff's treating physicians, on March 12, 2010. (R. 722--725.) He noted that plaintiff's medication caused fatigue and noted several other limitations that would affect plaintiff's ability to work-for example, that plaintiff could continuously sit or stand for only 30 minutes at a time, that plaintiff would need eight restroom breaks during the day, as well as two additional breaks during which plaintiff would have to rest 30 minutes before returning to work, and that plaintiff would likely be absent from work three days a month. (R. 723--724.) Dr. Shah further opined that those limitations existed before January 1, 2008, asserting that plaintiff had been hospitalized and had received treatment before January 1, 2008. (R. 725.)

On May 17, 2010, the ALJ issued an adverse decision denying disability insurance benefits. (R. 12--19.) Applying the Social Security Administration's five-step sequential evaluation process for determining whether an individual is disabled, see 20 C.F.R. § 404.1520,*fn7 the ALJ found that plaintiff was not disabled before December 31, 2007, when plaintiff's insured status expired. The ALJ found, at step one, that plaintiff had not engaged in substantial gainful activity since June 1, 2005, his alleged disability onset date. (R. 14.) At step two, the ALJ found that plaintiff's pancreatitis, diverticulitis, and shoulder impairment*fn8 were "severe" impairments (R. 14), but at step three, she determined that they did not meet any of the listed impairments at any time before December 31, 2007 (R. 15--16). At step four, the ALJ found that plaintiff had the residual functional capacity to perform a full range of light work as defined in 20 C.F.R. § 404.1567(b). (R. 16--18.) Because plaintiff's past work constituted medium and heavy work, however, the ALJ found that plaintiff could not perform any past work. (R. 18.) But, relying on the medical-vocational guidelines, and considering plaintiff's age, education, and work experience, the ALJ found that jobs "existed in significant numbers in the national economy that [plaintiff] could have performed," and thus concluded that plaintiff was not disabled before his insured status expired on December 31, 2007. (R. 19.)

Plaintiff timely requested review by the Appeals Council. (R. 7.) The Appeals Council denied this request for review on April 20, 2011, and as a result, the ALJ's decision became the final decision of the Commissioner. (R. 1.)

Plaintiff filed this action on June 17, 2011, seeking review of the Commissioner's decision to deny him disability insurance benefits. I referred the matter to a magistrate judge, who, in a report and recommendation dated January 31, 2012, concluded that the Commissioner's decision was supported by substantial evidence and thus recommended that I affirm the Commissioner's decision. Plaintiff has now filed objections to the magistrate judge's report.

II. STANDARD OF REVIEW

A district court reviews de novo the parts of the magistrate judge's report and recommendation to which either party objects. See 28 U.S.C. § 636(b)(1). The district court may accept, reject, or modify, in whole or in part, the magistrate judge's findings or recommendations. See id.

With respect to the Commissioner's decision, however, the standard of review is deferential. Although a district court exercises "plenary review" over any legal questions presented by the Commissioner's decision, a court may review the Commissioner's "factual findings only to determine whether the administrative record contains substantial evidence supporting the findings." Allen v. Barnhart, 417 F.3d 396, 398 (3d Cir. 2005). As the Supreme Court has explained, "[s]ubstantial 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.'" Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999) (quoting Pierce v. Underwood, 487 U.S. 552, 565 (1988)). This standard requires "more than a mere scintilla" of evidence but "somewhat less than a preponderance of the evidence." Rutherford, 399 F.3d at 552.

The court may not "weigh the evidence," Williams v. Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992), and may not "set the Commissioner's decision aside if it is supported by substantial evidence, even if [the court] would have decided the factual inquiry differently," Hartranft, 181 F.3d at 360; see also 42 U.S.C. § 405(g) ("The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive . . . ."). In determining whether the Commissioner's decision is supported by substantial evidence, however, the court must consider "the evidentiary record as a whole, not just the evidence that is consistent with [the Commissioner's] finding." Monsour Med. Ctr. v. Heckler, 806 F.2d 1185, 1190 (3d Cir. 1986). "A single piece of evidence will not satisfy the substantiality test if the [Commissioner] ignores, or fails to resolve, a conflict created by countervailing evidence. Nor is evidence substantial if it is overwhelmed by other evidence . . . or if it really constitutes not evidence but mere conclusion." Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983).

III. DISCUSSION

In seeking review of the ALJ's decision (which became the Commissioner's final decision), plaintiff raised four issues:*fn9 first, that the ALJ erred by failing to consult a medical advisor to help infer the onset date of his disability; second, that the ALJ erred in giving little weight to certain medical opinions; third, that the ALJ erred in determining his residual functional capacity, because she improperly rejected the assessments of his treating physician and others, failed to consider the side effects of his medication, and failed to properly consider his subjective complaints of pain and fatigue; and fourth, that the ALJ erred in ignoring the testimony of a vocational expert and instead relying solely on the medical-vocational guidelines. The magistrate judge found no merit in any of plaintiff's claims and recommended that the Commissioner's decision be affirmed. Plaintiff has objected to the magistrate judge's report and recommendation with regard to nearly every ...


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