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Douglas Smith v. Carolyn W. Colvin


May 8, 2013


The opinion of the court was delivered by: A. Richard Caputo United States District Judge

(Judge Caputo)

(Complaint Filed 11/8/11)



The above-captioned action is one seeking review of a decision of the Commissioner of Social Security ("Commissioner") denying Plaintiff Douglas Smith's claim for social security disability insurance benefits and supplemental security income benefits.

Disability insurance benefits are paid to an individual if that individual is disabled and "insured," that is, the individual has worked long enough and paid social security taxes. The last date that a claimant meets the requirements of being insured is commonly referred to as the "date last insured." It is undisputed that Smith meets the insured status requirements of the Social Security Act through December 31, 2013. Tr. 11, 13, 121, 123 and 139.*fn1

Supplemental security income is a federal income supplement program funded by general tax revenues (not social security taxes). It is designed to help aged, blind or other disabled individuals who have little or no income.

On October 20, 2009, Smith filed protectively*fn2 an application for disability insurance benefits and an application for supplemental security income benefits. Tr. 11, 69, 70, 110-120, 125-126, 136 and 139. The applications were initially denied by the Bureau of Disability Determination*fn3 on February 12, 2010. Tr. 11 and 77-84. On April 23, 2010, Smith requested a hearing before an administrative law judge. Tr. 11 and 92-94. After over 10 months had passed, a hearing was held on March 3, 2011. Tr. 11 and 21-67. On May 25, 2011, the administrative law judge issued a decision denying Smith's applications. Tr. 11-20. On July 25, 2011, Smith filed a request for review with the Appeals Council and on September 9, 2011, the Appeals Council concluded that there was no basis upon which to grant Smith's request. Tr. 1-3 and 5-7. Thus, the administrative law judge's decision stood as the final decision of the Commissioner.

Smith then filed a complaint in this court on November 8, 2011. Supporting and opposing briefs were submitted and the appeal*fn4 became ripe for disposition on May 14, 2012, when Smith elected not to file a reply brief.

Smith, who was born in the United States on July 18, 1982, withdraw from school in 1999 after completing the 11th grade. Tr. 110, 114, 136 and 149. Smith stated in documents filed with the Social Security Administration that he can read, write, speak and understand the English language and perform basic mathematical functions such as counting change. Tr. 143 and 156. During his elementary and secondary schooling, Smith attended regular education classes. Tr. 149. After withdrawing from school, Smith did not obtain a General Equivalency Diploma. Tr. 34. Smith completed in 1999 some training in "electrical construction." Tr. 150.

Smith has past relevant employment*fn5 as a laborer in a print factory which was described by a vocational expert as unskilled, heavy work; as a welder/steel fabricator which was described as semi-skilled, medium work; as a stocker/cleaner/cashier at a convenience store described as semi-skilled, heavy work; as a butcher at a grocery store described as skilled, heavy work; as an assistant in a meat department of a grocery store described as unskilled, heavy work; as a fast food worker (cook/preparer) described as skilled, medium work; as a laborer at a steel rope factory described as semi-skilled, medium work; and as a laborer at a tire store/garage described as semi-skilled, heavy work.*fn6 Tr. 50-53, 145 and 164.

Records of the Social Security Administration reveal that Smith had earnings in the years 1999 through 2008. Tr. 122. Smith's highest annual earnings were in 2001 ($12,571.39) and his second highest earnings in 2008 ($11,900.43). Id. Under the regulations of the Social Security Administration, Smith's work and earnings only amounted to substantial gainful activity in 2001 and 2008.*fn7 Smith's total reported earnings from 1999 through 2008 were $58,296.84. Id. Smith has no reported earnings after 2008. Id.

Smith claims that he became disabled on October 19, 2008,*fn8 because of both physical and mental impairments. Tr. 99, 118, 164. The physical impairments alleged include a history of multiple fractures of the bones of the lower limbs and a fracture of a thoracic vertebra. Tr. 13, 69, 81 and 144. The mental impairments alleged are anxiety and panic attacks. Tr. 42-43. The impetus for Smith's impairments was a motorcycle accident that occurred on October 19, 2008. Tr. 144. The injuries sustained can be fairly described as recklessly, or at least negligently, self-inflicted harm. Smith after consuming alcohol to the point of intoxication (over twice the legal limit)*fn9 fled from the police on the motorcycle and crashed into a parked vehicle. Tr. 328, 468 and 472; Doc. 6, Plaintiff's Brief, p. 2. Smith suffered an open left tibia (shinbone) fracture, a left comminuted*fn10 fibula (the calf bone) fracture, a non-displaced right fibula fracture, burns across the lower calf involving skin loss, a burst compression fracture of the T12 vertebral body and pedicles,*fn11 fractures of the nasal bones, severe facial and scalp lacerations and a neck laceration. Tr. 255-256, 399, 406, 466-468 and 472-474. Smith was initially treated in the emergency department at the Geisinger Wyoming Valley Medical Center but was then admitted to the hospital on October 19, 2008 and not discharged until November 7, 2008. Id. During his hospital stay, Smith underwent, inter alia, spinal fusion surgery. Id. Smith claims that his mental impairments and the pain associated with his physical impairments prevent him from working in any capacity. Id.

The administrative record in this case is 584 pages in length and we have thoroughly reviewed that record. The medical records reveal that Smith sustained substantial physical trauma as a result of the motorcycle accident. Smith has not worked since the date of the accident.

For the reasons set forth below we will remand the case to the Commissioner for further proceedings.


When considering a social security appeal, we have plenary review of all legal issues decided by the Commissioner. See Poulos v. Commissioner of Social Security, 474 F.3d 88, 91 (3d Cir. 2007); Schaudeck v. Commissioner of Social Sec. Admin., 181 F.3d 429, 431 (3d Cir. 1999); Krysztoforski v. Chater, 55 F.3d 857, 858 (3d Cir. 1995). However, our review of the Commissioner's findings of fact pursuant to 42 U.S.C. § 405(g) is to determine whether those findings are supported by "substantial evidence." Id.; Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988); Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir. 1993). Factual findings which are supported by substantial evidence must be upheld. 42 U.S.C. §405(g); Fargnoli v. Massanari, 247 F.3d 34, 38 (3d Cir. 2001)("Where the ALJ's findings of fact are supported by substantial evidence, we are bound by those findings, even if we would have decided the factual inquiry differently."); Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981)("Findings of fact by the Secretary must be accepted as conclusive by a reviewing court if supported by substantial evidence."); Keefe v. Shalala, 71 F.3d 1060, 1062 (2d Cir. 1995); Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001); Martin v. Sullivan, 894 F.2d 1520, 1529 & 1529 n.11 (11th Cir. 1990).

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. 552, 565 (1988)(quoting Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)); Johnson v. Commissioner of Social Security, 529 F.3d 198, 200 (3d Cir. 2008); Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999). Substantial evidence has been described as more than a mere scintilla of evidence but less than a preponderance. Brown, 845 F.2d at 1213. In an adequately developed factual record substantial evidence may be "something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence." Consolo v. Federal Maritime Commission, 383 U.S. 607, 620 (1966).

Substantial evidence exists only "in relationship to all the other evidence in the record," Cotter, 642 F.2d at 706, and "must take into account whatever in the record fairly detracts from its weight." Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 488 (1971). A single piece of evidence is not substantial evidence if the Commissioner ignores countervailing evidence or fails to resolve a conflict created by the evidence. Mason, 994 F.2d at 1064. The Commissioner must indicate which evidence was accepted, which evidence was rejected, and the reasons for rejecting certain evidence. Johnson, 529 F.3d at 203; Cotter, 642 F.2d at 706-707. Therefore, a court reviewing the decision of the Commissioner must scrutinize the record as a whole. Smith v. Califano, 637 F.2d 968, 970 (3d Cir. 1981); Dobrowolsky v. Califano, 606 F.2d 403, 407 (3d Cir. 1979).

Another critical requirement is that the Commissioner adequately develop the record. Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000)("The ALJ has an obligation to develop the record in light of the non-adversarial nature of benefits proceedings, regardless of whether the claimant is represented by counsel."); Rutherford v. Barnhart, 399 F.3d 546, 557 (3d Cir. 2005); Fraction v. Bowen, 787 F.2d 451, 454 (8th Cir. 1986); Reed v. Massanari, 270 F.3d 838, 841 (9th Cir. 2001); Smith v. Apfel, 231 F.3d 433. 437 (7th Cir. 2000); see also Sims v. Apfel, 530 U.S. 103, 120 S.Ct. 2080, 2085 (2000)("It is the ALJ's duty to investigate the facts and develop the arguments both for and against granting benefits[.]"). If the record is not adequately developed, remand for further proceedings is appropriate. Id. SEQUENTIAL EVALUATION PROCESS

To receive disability benefits, the plaintiff must demonstrate an "inability to engage in any substantial gainful activity by reason of any 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 not less than 12 months." 42 U.S.C. § 432(d)(1)(A). Furthermore,

[a]n individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. For purposes of the preceding sentence (with respect to any individual), "work which exists in the national economy" means work which exists in significant numbers either in the region where such individual lives or in several regions of the country. 42 U.S.C. § 423(d)(2)(A).

The Commissioner utilizes a five-step process in evaluating disability insurance and supplemental security income claims. See 20 C.F.R. §404.1520 and 20 C.F.R. § 416.920; Poulos, 474 F.3d at 91-92. This process requires the Commissioner to consider, in sequence, whether a claimant (1) is engaging in substantial gainful activity,*fn12 (2) has an impairment that is severe or a combination of impairments that is severe,*fn13 (3) has an impairment or combination of impairments that meets or equals the requirements of a listed impairment,*fn14 (4) has the residual functional capacity to return to his or her past work and

(5) if not, whether he or she can perform other work in the national economy. Id. As part of step four the administrative law judge must determine the claimant's residual functional capacity. Id.*fn15

Residual functional capacity is the individual's maximum remaining ability to do sustained work activities in an ordinary work setting on a regular and continuing basis.

See Social Security Ruling 96-8p, 61 Fed. Reg. 34475 (July 2, 1996). A regular and continuing basis contemplates full-time employment and is defined as eight hours a day, five days per week or other similar schedule. The residual functional capacity assessment must include a discussion of the individual's abilities. Id; 20 C.F.R. §§ 404.1545 and 416.945; Hartranft, 181 F.3d at 359 n.1 ("'Residual functional capacity' is defined as that which an individual is still able to do despite the limitations caused by his or her impairment(s).").


The administrative law judge went through the 5-step sequential evaluation process and determined that Smith could not perform his prior relevant work but that he had the ability to engage in a limited range of unskilled, light work. Tr. 14-15. In setting the residual functional capacity, the ALJ relied in part on what she referred to as "assessments completed by the State Agency and the findings of fact made by the State Agency and other program physicians regarding the nature and severity of the claimant's impairments." Tr. 18. Based on a light work residual functional capacity and the testimony of a vocational expert, the ALJ found that Smith could perform work as cleaner polisher, retail industry marker and an automatic film developer, and that there were a significant number of such positions in the state and national economies. Tr. 20.

Smith argues, inter alia, that the administrative law judge erred (1) by failing to appropriately evaluate the medical evidence, including the opinion of Kenneth H. Tomczyk, D.O., a treating physician, and (2) in setting the residual functional capacity at a light work exertional level. With respect to the ALJ's residual functional capacity assessment, Smith contends that the ALJ misinterpreted a functional capacity evaluation of Smith performed by Mark L. Rowan, a physical therapist, which was requested by Dr. Tomczyk.*fn16 Tr. 567-584. Those arguments have substantial merit.

In this case there was no assessment of the functional capabilities of Smith from a physician which supported the administrative law judge's residual functional capacity assessment and the bare medical records and other non-medical evidence were insufficient for the administrative law judge to conclude that Smith had the residual functional capacity to engage in light work. Light work requires that an individual be capable of engaging in frequent lifting and carrying of objects weighing up to ten pounds. "Frequent" is defined under the regulations as up to 2/3 or 67% of an 8-hour workday. The functional capacity assessment completed by Mr. Rowan indicates that Smith could only engage in back lifting and leg lifting of 8 pounds, power lifting of 10 pounds, shoulder lifting of 20 pounds, overhead lifting of 10 pounds, two hand carrying of 12 pounds, one hand carrying of 9 pounds, pushing/pulling when walking of 10 pounds, and push/pulling when standing of 11 pounds. Tr. 567. All of these activities could only be engaged in by Smith on an "infrequent" basis which was defined in the evaluation report as 1 to 2 percent of a workday. Id. The ALJ based her residual functional capacity assessment on Mr. Rowan's report but in doing so misinterpreted that report.

The ALJ also relied in part on what she referred to as the functional assessments of state agency physicians. However, this was a legal and factual error because the individual, John S. Berlyn, who reviewed Smith's medical records was not a physician but a non-medical state agency adjudicator, and there is no evidence in the record that a state agency physician reviewed the opinion of Mr. Berlyn. Tr. 69-76. In fact the "Disability Determination and Transmittal" forms relating to the initial denial of Smith's DIB and SSI claims by the Bureau of Disability Determination were only signed by Mr. Berlyn and were not signed by a physician in section 32 entitled "Physician or Medical Spec. Signature." Tr. 69-70.

This court has repeatedly found such statements from non-medical disability adjudicators insufficient evidence of a claimant's residual functional capacity. See, e.g., Ulrich v. Astrue, Civil No. 09-803, slip op. at 17-18 (M.D.Pa. December 9, 2009)(Muir, J.); Spancake v. Astrue, Civil No. 10-662, slip op. at 15 (M.D. Pa. December 23, 2010)(Muir, J.); Gonzalez v. Astrue, Civil No. 10-839, slip op. at 16 (M.D.Pa. January 11, 2011)(Muir, J.); Peak v. Astrue, Civil No. 10-889, slip op. at 25 (M.D.Pa. January 24, 2011)(Muir, J.); see also Dutton v. Astrue, Civil No. 10-2594, slip op. at 22 n. 32 (M.D.Pa. January 31, 2012)(Munley, J.); Rich v. Colvin, Civil No. 11-1778, slip op. at 19-20 (M.D. Pa. April 29, 2013)(Kosik, J.).

With respect to the reliance on a form completed by the state agency disability adjudicator, administrative law judges have been instructed to accord such documents no evidentiary weight. See Doc. 12, pages 14-15 in Edwards v. Astrue, Civil No. 10-126 (M.D.Pa.)(quoting a memorandum from the Chief Administrative Law Judge stating the policy of Social Security Administration prohibits Administrative Law Judges from according any weight to forms completed by the non-medical state agency disability examiners).

Our review of the administrative record reveals that the decision of the Commissioner is not supported by substantial evidence. We will, therefore, pursuant to 42 U.S.C. § 405(g) vacate the decision of the Commissioner and remand the case to the Commissioner for further proceedings.

An appropriate order will be entered.

A. Richard Caputo

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