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Cahill v. Colvin

United States District Court, Third Circuit

August 8, 2013

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


WILLIAM H. YOHN, District Judge.

Plaintiff, Timothy Cahill, initiated this action seeking review of the Social Security Commissioner's decision to deny his application for Social Security Disability Insurance Benefits ("DIB"). I referred the case to a magistrate judge for a report and recommendation ("RR"), which issued on June 17, 2013. That same day, Cahill filed his objections thereto. After independent, de novo review of the RR and plaintiff's objections, I will approve and adopt the report of the magistrate judge denying plaintiff's request for review and entering judgment in favor of defendant.


A. Administrative Framework

To qualify for DIB, a claimant must have a disability. 42 U.S.C. § 423(a)(1)(E). A disability means the "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." Id. § 423(d)(1)(A). A person has a disability when the person's "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." Id. § 423(d)(2)(A). For the Commissioner to find that a person has a disability, the person must "furnish[ ] such medical and other evidence of the existence" of a disability, including "[o]bjective medical evidence of pain or other symptoms established by medically acceptable clinical or laboratory techniques." Id. § 423(d)(5)(A).

When evaluating a claim for DIB, the Commissioner applies a five-step sequential analysis: (1) whether the claimant worked during the alleged period of disability, (2) whether the claimant has a "severe medically determinable... impairment, " (3) whether the "impairment" meets the requirements of a listed impairment, (4) whether the claimant can continue to perform "past relevant work, " and (5) whether the claimant can perform "other work" in the national economy. 20 C.F.R. § 404.1520(a)(4); Sykes v. Apfel, 228 F.3d 259, 262-63 (3d Cir. 2000). The claimant bears the burden of proving steps one through four. If the claimant satisfies these requirements, the burden of production shifts to the Commissioner to show that the claimant is capable of performing "other work." Sykes, 228 F.3d at 263; see also Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir.1999) (noting burden of production shifts to Commissioner at step five).

At the outset of step four, the Commissioner must assess the claimant's residual functional capacity ("RFC"), a measure of what the claimant can do in a work setting despite the claimant's physical and mental limitations. 20 C.F.R § 404.1545(a)(1); see also Johnson v. Comm'r of Soc. Sec., 529 F.3d 198, 201 (3d Cir. 2008). The Commissioner then determines whether the claimant, in light of his RFC, can perform his "past relevant work"; if he can, then the Commissioner will find him not disabled. 20 C.F.R. § 404.1520(a)(4)(iv).

The fifth step involves a two-part analysis. First, the Commissioner must assess the claimant's present job qualifications based on the claimant's RFC, age, education, and work experience. 20 C.F.R. § 404.1520(a)(4)(v); see also Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir. 1993) (citing regulations). Next, based on the claimant's qualifications, the Commissioner must identify what jobs exist in the national economy that the claimant can perform. 20 C.F.R. § 404.1520(g); see also Mason, 994 F.2d at 1064 (citing regulations). If the claimant can make an adjustment to other work, the Commissioner will find that he is not disabled. 20 C.F.R. § 404.1520(a)(4)(v). If he cannot, the Commissioner will find him disabled. Id.

B. Time Line of Administrative Proceedings.

Cahill was born January 26, 1964. (Admin. R. 91.) Cahill sustained a back injury in late August 2004 while working as an auto mechanic, when he tried to lift a Hummer tire. ( Id. at 354, 386.) He was forty years old at the time. ( See id. 158.) He filed a protective application for DIB on November 8, 2007, claiming disability since September 3, 2004, the date he stopped working. ( Id. at 247; 45.) Cahill's application was denied on March 6, 2008. In its denial letter, the Social Security Administration explained that Cahill did not qualify for DIB because he had the ability to perform past work - namely, he had previously worked as an insurance salesman for one year. ( Id. 110.) On April 3, 2008, Cahill requested an administrative hearing before an administrative law judge ("ALJ") for a new determination. ( Id. at 121.) The hearing was held before ALJ Richard A. Kelly on May 8, 2009. ( Id. at 130.) At the hearing, the ALJ heard testimony from Cahill and Beth Kelley, a vocational expert. ( Id. at 40-62.)

The ALJ issued an unfavorable decision on July 15, 2009. ( Id. at 92-102.) He made the following relevant findings: Cahill met the insured status requirements of the Social Security Act through December 31, 2009 ("date last insured").[1] He had not engaged in a substantial gainful activity ("SGA") since September 3, 2004. He had a severe impairment, in that he suffered lower back pain due to degenerative disc disease. As for RFC, Cahill still had the capacity to perform a range of light work; specifically, he could lift and carry up to twenty pounds and could stand and walk for four hours during an eight-hour workday, but would need to change position every hour. The ALJ found that Cahill had past relevant work as a cook and auto mechanic, [2] but that he was unable to perform this past relevant work. Finally, in light of Cahill's age, education, work experience, and RFC, the ALJ accepted the vocational expert's testimony that Cahill could work as a "production assembler" or a "sorter." ( Id. at 101.) Based on this last finding, the ALJ determined that Cahill was not disabled from September 3, 2004, through the date of decision.

On July 22, 2009, Cahill requested that the Appeals Council review the ALJ's decision. ( Id. at 148.) He argued that the ALJ improperly discounted the opinion of his treating physician, Dr. Thomas Whalen. ( Id. at 288-292.) In an order dated March 10, 2010, the Appeals Council granted the request, vacated the ALJ's decision, and remanded the case for a new hearing and determination. ( Id. at 104-105.) The Appeals Council found that the ALJ had failed to consider the most recent medical evidence and records submitted by Dr. Whalen through March 2009. It directed the ALJ to evaluate this evidence, as well as evidence submitted to the Appeals Council after the ALJ's decision. The Appeals Council also noted that the ALJ had asked the vocational expert to suggest jobs based on an assumed RFC for a full range of light work, whereas the ALJ explicitly found an RFC for light work with the limitation of standing and walking for four hours during an eight-hour work day. Given this mismatch, the Appeals Council directed the ALJ to "[o]btain supplement evidence from a vocational expert to clarify the effect of the assessed limitations on the claimant's occupational base."[3] ( Id. at 105.)

A second hearing was held before ALJ Kelly on March 23, 2011. Cahill and Daniel Rapucci, a new vocational expert, testified. ( Id. at 65-90.) On April 20, 2011, the ALJ again issued an unfavorable decision, finding that Cahill was not disabled under the statute during the relevant period - September 3, 2004 through December 31, 2009 (the date last insured). He found that Cahill did not engage in SGA during this period. He found the following severe impairments during the relevant period: low back pain from degenerative disc disease and a left shoulder impairment from adhesive capsulitis. The ALJ modified his RFC finding: "through the date last insured the claimant had the [RFC] to perform light work... except that the claimant must be permitted to change position occasionally and had no ability to reach and lift overhead with the left upper extremity." ( Id. at 33.) Cahill was unable to return to his past relevant work as a cook or auto mechanic. However, the ALJ found that, in light of his age, education, work experience, and RFC, Cahill could work as an "inspector/sorter" or "production worker (small products assembler)." ( Id. at 36.) Thus, he was not under a disability at any point during the relevant time frame.

Cahill asked the Appeals Council to review the ALJ's decision on April 27, 2011. He wrote a letter to the Appeals Council on June 7, 2012, setting forth his arguments for review. First, he alleged the ALJ relied too heavily on the opinion of a state agency medical consultant. Second, the ALJ failed to give controlling weight to the treating physician, Dr. Whalen. Third, the ALJ improperly gave limited weight to the opinion of another examining physician, Dr. Robert Sing, while failing to state what weight he gave to the opinion of a third examiner, Dr. Sofia Lam. Fourth, he gave inadequate reasons for discrediting Cahill's testimony about the severity of his impairments. Cahill also sought to introduce "new and material evidence" in the form of additional medical documents from Drs. Whalen and Sing, as well as records from a neurologist, Dr. Leonard Geiger, and from Paoli Hospital. He averred that these records substantiated Dr. Whalen's opinions and his personal testimony by documenting his "persistent symptoms from chronic spinal impairments." ( Id. at 311.)

Cahill sent another letter to the Council on August 7, 2012, raising additional arguments.[4] ( Id. at 313-315.) He contended that the ALJ had not complied with the Council's previous remand order, in that the ALJ failed to note and resolve discrepancies between the vocational expert's testimony and information contained in the Dictionary of Occupational Titles ("DOT").[5] Specifically, the job alternatives suggested by the vocational expert - and accepted by the ALJ - included frequent or constant reaching and had no "sit/stand option." According to Cahill, this was inconsistent with the limitations identified in the RFC finding, which required occasional changes in position and no reaching. ( Id. at 314.) Cahill further argued that the ALJ erred when he failed to consider Cahill's gout a severe impairment as part of the disability inquiry.

The Appeals Council accepted the additional evidence into the record; nevertheless, it concluded review was not justified under the applicable laws and regulations. Thus, the ALJ's decision of April 20, 2011, stands as the final decision of the Commissioner of Social Security with respect to Cahill's application for DIB. ( Id. at 3-6.) On October 9, 2012, Cahill initiated this civil action in the nature of a review of the Commissioner's decision. (Compl.)

C. Evidence Submitted to the ALJ

I will summarize the information contained in the record insofar as it is relevant to the case at hand.[6] In the first hearing, the ALJ considered testimony from Cahill himself and a vocational expert. In his opinion memorandum, he referred to treatment records from Drs. Charles Odgers, Lawrence Buckland, Sofia Lam, Whalen, and the Bryn Mawr Family Practice Center. He also discussed the results of a consultative examination with Dr. Stanton Bree. He cited hospital records from Paoli Hospital and Bryn Mawr Hospital. Finally, he noted a state agency's evaluation[7] of Cahill's physical limitations. Other evidence in the record at the time of the ALJ's first decision, but not explicitly relied upon in his opinion, included emergency room records from Paoli Memorial Hospital and additional medical reports from Dr. Whalen.

At the time of the first hearing, Cahill was forty-five years old. (Admin. R. 41.) He testified that he had driven to the hearing, and that over the previous year he had driven 1, 200 miles. ( Id. at 43.) After graduating high school he attended Rhode Island School of Design and Culinary Arts and received a Culinary Arts Associate's Degree. In 1998, he attended and graduated from an automotive training center. His last job prior to the hearing was as a mechanic at Armen Chevy in Ardmore, Pennsylvania; Cahill worked as a mechanic for a sum total of five years. Before working as a mechanic, he worked as a cook in various restaurants. He also worked briefly (three months) as an insurance salesman. ( Id. at 43-45.)

Cahill testified that a back injury had kept him from working since September 3, 2004. At the time he got hurt, he also suffered from gout, for which he sought treatment from Dr. Whalen. Cahill was regularly taking oxycodone and oxycodone IR for his back pain and over-the-counter pain relievers. He testified that he disliked taking the medication because it makes him lightheaded and tired, and that it only helps a little with his pain. Because Cahill had just secured insurance, he was seeing another doctor for a left shoulder injury, and was set to start full time treatment with "Dr. Buckman" at Paoli Family Medicine. He was doing simple physical therapy for his shoulder. He had taken Allopurinol for his gout, but it "t[ore his] stomach up, " so he had switched to taking Omega 3, 6, and 9 to fix the gout. In 2007 and 2008, Cahill went to Bryn Mawr and Paoli Hospitals complaining of chest pains and difficulty breathing; Cahill testified that the doctors "really didn't find anything." ( Id. at 45-49.)

Cahill described his symptons as numbing pain in the small of his back, going down (mainly) his left leg. ( Id. at 45.) He also mentioned numbness and tingling in his leg and foot. ( Id. at 46.) He estimated he could walk two city blocks before pain started in his back; if he continued, it got worse and the pain began to radiate down the left leg to his big toe. He could stand for about forty minutes, and then needed to lie down. He could sit for forty minutes to an hour, and then had to get up or lie down. He could not bend at the waist (to pick something up off the floor, for example), and he could only squat with severe pain. He could walk up and down stairs, but with pain in his lower back and leg. He testified that he did not carry anything over ten pounds. He stated that there was nothing wrong with his arms, hands, or fingers, but that he had a "frozen" left shoulder. A few months prior to the hearing, Cahill's left leg collapsed under him, which led him to fall. This had happened four or five times. He did not seek treatment for the shoulder because he did not have insurance and he assumed it would get better on its own. Cahill could not reach above his head with the left arm due to his shoulder. ( Id. at 49-51; 56.)

Cahill testified that he did his grocery shopping at a store across the street from his house. He could manage some housework, but his house was "real dirty." He got help for some activities from his cousins, and he had someone take out his trash for him. He fed himself, mostly with canned soup. He laundered his own clothes, and his washing machine was set up such that he did not have to bend. He occasionally socialized, such as when he visited his aunt's house for an hour during the prior Easter. He occupied himself by watching television. He loved fishing, but the last time he had gone was two weeks before his injury. On days when he felt less pain, Cahill would shower, clean, get some laundry done, and try to wash the dishes. He would try to go out and see a friend. He received income in the form of insurance payments for long-term disability through Hartford insurance. ( Id. at 53-55.)

Cahill had difficulties sleeping; after lying down for a while, he would wake up in extreme pain. He averaged about four hours of sleep per night. He spent seventy to eighty percent of the day lying down in his motorized recliner or bed. He had been using a cane for two years to balance himself when he walked. He had difficulty showering, and would sometimes forego it for a few days. He used a handicapped shower. He had difficulties concentrating, because pain would distract him from whatever task was at hand. ( Id. 55-57.)

Ms. Kelly, the vocational expert, testified as follows. Cahill's prior jobs as cook and auto mechanic were both skilled labor with medium to heavy exertional level. The ALJ asked if there would be jobs for a hypothetical claimant who could perform a full range of light work, but with the need to occasionally change position every hour or so (between sitting and standing). The vocational expert responded that jobs such as production assembler or sorter would satisfy these criteria. She stated that there were 7, 000 assembler jobs in the region and 300, 000 nationally; as for sorter, there were roughly 500 in the region and 60, 000 nationally. The ALJ then asked the vocational expert to posit a claimant with the levels of pain and limitations to which Cahill testified. She testified that there would be no work possible for such a claimant. The ALJ then pointed to assessment from Dr. Whalen, which indicated a capability to engage in work activity for three hours and a prohibition on postural activities. The vocational expert testified no jobs existed to fit this profile. ( Id. at 59-62.)

The Bryn Mawr Family Practice records date from March 2004 to January 7, 2008. ( Id. at 327-353.) An entry from February 2005 notes a history of gout in Cahill's right foot, as well as his complaint that he could not sleep for more than a few hours at a time due to his chronic back pain. ( Id. at 331). An entry from July 2004 reveals that Cahill's gout caused him such severe pain in his right foot that he would awaken from sleep, but that he preferred not to take medication because it put him in a daze. ( Id. at 334.) An entry on September 7, 2004, shows that Cahill went to the "Paoli ER" complaining of hip pain, and on September 8, 2004, he complained of pain in his hips, lower back, and down his legs. However, when he sat, it seems the pain abated. ( Id. at 339.) On September 9, 2004, the doctor noted that Cahill believed his pain was caused by a lower back injury he sustained a "few weeks ago." ( Id. at 340.) The records show that Dr. Whalen had previously been treating Cahill for gout, and that Cahill continued seeing Dr. Whalen with regard to his back pain. ( Id. at 339-341.)

On October 9, 2006, Dr. Sofia Lam examined Cahill and issued a report. ( Id. at 354-356.) She found lumbar radiculopathy with the main focus in the left L5 root distribution; mechanical low back symptomatology with lumbar facet arthropathy; and myofascial pain symptomatology as a result of sprain/strain injury. She relied on the results of an MRI of the lumbosacral spine, which revealed disc protrusion at L4-5 level with facet joint hypertrophy at lower segmental levels. She conducted a straight leg raise test ("SLR") that was positive only on the left side, at ...

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