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Weitzel v. Colvin

United States District Court, M.D. Pennsylvania

August 23, 2013

JO ANN WEITZEL, Plaintiff
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant

For Jo Ann Weitzel, Plaintiff: Gregory G. Paul, Equality At Work, PLLC, Sewickley, PA; Robert W Gillikin, II, Rutter Mills, LLP, Norfolk, VA.

For Commissioner Michael J. Astrue, Defendant: Mark.E. Morrison, U.S. Attorney's office - Social Security, Harrisburg, PA.

OPINION

MEMORANDUM

Nealon, United States District Judge.

Background

The above-captioned action is one seeking review of a decision of the Commissioner of Social Security (" Commissioner" ) denying Plaintiff Jo Ann Weitzel's claim for social security disability insurance benefits.

Weitzel protectively filed her application for disability insurance benefits on March 18, 2008. Tr. 17, 64, 97-101 and 108. [1] The application was initially denied by the Bureau of Disability Determination [2] on June

Page 1090

10, 2008. Tr. 64 and 66-69. On July 7, 2008, Weitzel requested a hearing before an administrative law judge. Tr. 17 and 72. After about 21 months had passed, a hearing was held on April 8, 2010, before an administrative law judge. Tr. 17 and 28-63. On April 29, 2010, the administrative law judge issued a decision denying Weitzel's application. Tr. 17-23. On June 25, 2010, Weitzel filed a request for review with the Appeals Council and after almost 18 months had passed, the Appeals Council on December 7, 2011, concluded that there was no basis to grant Weitzel's request for review. Tr. 1-6 and 11-13.

Weitzel then filed a complaint in this Court on February 6, 2012. Supporting and opposing briefs were submitted and the appeal [3] became ripe for disposition on July 18, 2012, when Weitzel filed a reply brief.

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 Weitzel met the insured status requirements of the Social Security Act through June 30, 2012. Tr. 17, 19, 102 and 144.

Weitzel, who was born on July 29, 1946, withdrew from school in 1964 after completing the 11th grade. Tr. 35, 97 and 131. Weitzel can read, write, speak and understand the English language and perform basic mathematical functions. Tr. 41 and 124. During her elementary and secondary schooling, Weitzel attended regular education classes. Tr. 131. After withdrawing from school, Weitzel did not obtain a General Equivalency Diploma. Tr. 40. Weitzel is considered a person of limited education. 20 C.F.R. § 404.1564(b)(3).

The record reveals that Weitzel had earnings in 1964, 1965, 1969, 1970, 1987 through 1996, and 2000 through 2008. Tr. 103. Her total earnings during those 23 years were $161,236.47. Id. The Court will, however, focus on Weitzel's employment commencing in 1987. Weitzel had employment as a dispatcher for the Area Transportation Authority of North Central, Pennsylvania, Inc., a bus company, from 1987 to 1996. [4] Tr. 104, 112 and 182. Weitzel's earnings during those years were as follows:

1987

$ 2357.25

1988

6063.27

1989

10987.51

1990

11804.13

1991

12960.81

1992

14179.76

1993

14649.74

1994

16159.13

1995

16566.15

1996

785.48

Tr. 103-104. Weitzel's description of the dispatcher position set forth in a document filed with the Social Administration suggests that from an exertional standpoint it primarily was a sedentary one. Tr. 115. Weitzel stated that the position involved walking 1 hour, standing 1 hour and sitting 3 hours during an 8-hour workday [5] and

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the heaviest weight she lifted was less than 10 pounds. [6] Id.

In the year 2000, Weitzel earned $3488.80 when she worked as a recreational therapist at the Charles Cole Memorial Hospital, Coudersport, Pennsylvania. Tr. 104, 112 and 182. The description of the recreational therapist position provided by Weitzel suggests that with respect to the weight lifted it was a sedentary position but with respect to the standing, walking and sitting requirements it was more than a sedentary one. Tr. 114. Weitzel stated that she would walk 3 hours, stand .5 hours, sit 3 hours and stoop .5 hours, and write, type or handle small objects 1 hour. Id.

In 2001, Weitzel worked part of the year as a recreational therapist at the Charles Cole Memorial Hospital earning $1804.67 and then as a driver's license technician for the Pennsylvania Department of Motor Vehicles [7] earning $2752.12. Tr. 38, 104 and 182. Weitzel's total earnings in 2001 were $4556.79. Tr. 103. As a driver's license technician Weitzel would, inter alia, answer questions and take photographs. Tr. 113. The description of the driver's license technician position provided by Weitzel suggests that it was more than a sedentary one. Id. The heaviest weight lifted by Weitzel was 10 pounds and she alternated sitting and standing. Tr. 38-39 and 113.

In 2002 through 2008, Weitzel worked as a driver's license technician and had the following earnings:

2002

$3843.03

2003

7355.16

2004

7116.69

2005

7122.07

2006

7320.83

2007

8089.17

2008

854.29

Tr. 103. Weitzel has not worked since January 23, 2008. Tr. 125. Tr. 58. Weitzel took early retirement at age 62 on July 29, 2008, and is presently receiving Social Security retirement benefits. Tr. 40.

Weitzel claims that she became disabled on January 23, 2008, because of degenerative disc and joint disease of the spine, a pinched nerve causing pain, weakness and

Page 1092

numbness in her left hip and leg, right knee weakness, shoulder pain, hand pain, headaches, and a decrease in her cognitive functioning. Tr. 125, 128, 138, 140-141 and 258-259. Weitzel contends that she has difficulty sitting or standing long periods of time and that she is unable to twist or bend. Tr. 125. She further claims she has problems with her memory and concentration which prevent her from working. Tr. 141. The impetus for Weitzel's low back pain, leg weakness, right knee problems, headaches, cognitive difficulties and other functional limitations was a fall on ice that occurred on January 23, 2008, when she was leaving work at the Department of Motor Vehicles. Tr. 386.

A vocational expert did not testify at the administrative hearing or provide a written report regarding Weitzel's past relevant employment. Past relevant employment means work performed by Weitzel during the 15 years prior to the date her claim for disability was adjudicated by the Commissioner [8] and which was substantial gainful activity. 20 C.F.R. § § 404.1560, 404.1565 and 404.1572.

Substantial gainful activity is work that " involves doing significant and productive physical or mental duties" and " is done (or intended) for pay or profit." 20 C.F.R. § 416.1510. In order to amount to substantial gainful activity, the individual's earnings have to rise to at least a minimum level set by regulations of the Social Security Administration. Substantial Gainful Activity, Automatic Determinations, Social Security Online, http://www.ssa.gov/oact/COLA/sga.html (Last accessed August 20, 2013). In 1995 and 1996, the amount for a non-blind individual was $500 per month or $6000 per year; in 2000 the amount was $700 per month or $8400 per year; in 2001 the amount was $740 per month or $8880 per year; in 2002 the amount was $780 per month or $9360 per year; in 2003 the amount was $800 per month or $9600 per year; in 2004 the amount was $810 per month or $9720 per year; in 2005 the amount was $830 per month or $9960 per year; in 2006 the amount was $860 per month or $10320 per year; in 2007 the amount was $900 per month or $10800 per year; and in 2008 the amount was $940 per month or $11280 per year. Id. With respect to the 15-year period, the only year in which Weitzel's earnings rose to the level of substantial gainful activity was 1995 when she was working as a dispatcher.

Weitzel was 61 years of age on the alleged disability onset date and 64 years of age on the date of the administrative hearing and the issuance of the ALJ's decision. Under the Social Security regulations, a person 55 or older is considered a " person of advanced age." 20 C.F.R. § § 404.1563(e). The Social Security Administration considers that on or after age 55, a person's age " significantly affects [the] person's ability to adjust to other work" and there are special rules applied to those claimant's in that category. Id. A claimant of advanced age with a severe impairment who is limited to sedentary or light work is automatically considered disabled

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if the claimant has no transferrable job skills and is unable to perform his or her past relevant employment. 20 C.F.R. § 404.1520(f) and § 404.1568(d)(4). In this case, Weitzel was found by the administrative law judge to have a severe impairment and that Weitzel could perform her past relevant employment. Tr. 19 and 22. However, the administrative law judge identified, without the benefit of testimony from a vocational expert, the dispatcher, recreational therapist and driver's license technician positions as Weitzel's past relevant employment. Tr. 22. Also, the ALJ did not address the issue of transferability of job skills.

The critical issue in this case is whether substantial evidence supports the ALJ's finding that Weitzel could perform her past relevant work as a dispatcher. If substantial evidence does not support that finding, the decision of the Commissioner must be vacated and the case remanded to the Commissioner for further proceedings. Although Weitzel took early retirement, it is undisputed that election does not prevent her from substituting disability benefits for her early retirement benefits and continuing to receive disability benefits until her full retirement age. It is also undisputed that Weitzel has a limited education. A claimant with a limited education, no past relevant employment or unable to perform his or her past relevant employment, no transferrable jobs skills, [9] 55 years of age or older, and with a severe impairment which limits the claimant to sedentary or light work is automatically entitled to an award of disability benefits. See Medical-Vocational Rules 202.00(c) and 202.02, 20 C.F.R. Part 404, Subpart P, Appendix 2.

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

Standard of Review

When considering a social security appeal, the Court has 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, the Court's 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. Halter, 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,

Page 1094

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, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988)(quoting Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (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, 86 S.Ct. 1018, 16 L.Ed.2d 131 (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, 71 S.Ct. 456, 95 L.Ed. 456 (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).

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; 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, [10] (2) has an impairment

Page 1095

that is severe or a combination of impairments that is severe, [11] (3) has an impairment or combination of impairments that meets or equals the requirements of a listed impairment, [12] (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. [13]

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; 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)." ).

Discussion

The administrative law judge, at step one of the sequential evaluation process, found that Weitzel had not engaged in substantial gainful work activity since January 23, 2008, the alleged disability onset date. Tr. 18.

At step two of the sequential evaluation process, the administrative law judge found that Weitzel had the following severe impairment: " chronic back discomfort[.]" [14] Id. The administrative law

Page 1096

judge also found that Weitzel suffered from a right knee injury and a " post concussion syndrome or cognitive loss" but that those impairments were non-severe. Id.

At step three of the sequential evaluation process, the administrative law judge found that Weitzel's impairments did not individually or in combination meet or equal a listed impairment. Tr. 20.

At step four of the sequential evaluation process, the administrative law judge found that Weitzel had the residual functional capacity to perform the full-range of light work [15] and that she could perform her past relevant work as a dispatcher, recreational therapist and driver's license technician. Consequently, the ALJ found that Weitzel was not disabled. Tr. 20-23. There was no evidence from a vocational expert presented at the administrative hearing and the ALJ did not proceed to step 5 of the sequential evaluation process.

The administrative record in this case is 391 pages in length, primarily consisting of medical and vocational records. Weitzel argues, inter alia, that the administrative law judge erred in failing to consider the medical condition of Weitzel's cervical spine in setting Weitzel's residual functional capacity. The Court has thoroughly reviewed the medical records and finds merit in Weitzel's argument.

On May 15, 2008, Weitzel had an MRI of the cervical spine which revealed the following: " Broad based protrusions involving the C5-6 and C6-7 discs with slight associated impingement on the cord and bilateral foraminal encroachment." Tr. 223. The ALJ did not address this evidence in his decision.

The administrative law judge not only failed to address the condition of Weitzel's cervical spine, he also failed to address repeated physical examination findings by James Barke, M.D., a treating physician, that Weitzel had limitations in forward flexion (bending) and lateral bending as well as positive straight leg raising tests on the left. [16] Tr. 251-254, 317-320 and 323-325. In fact, Dr. Barke on July 31, 2008, found that Weitzel had " [m]arked limitations in forward flexion and lateral bending" and a positive straight leg examination on the left. Tr. 254. The ALJ did not address this evidence and how it would impact Weitzel's ability to perform the full-range of light work. A vocational expert did not testify regarding the impact that a " marked limitation in forward flexion and lateral bending" would have on Weitzel's ability to perform the full-range of light work or her ability to perform her past relevant work as a dispatcher.

Also, the ALJ failed to address medical evidence indicating that Weitzel suffered from radiculopathy [17] impacting her left

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leg. Tr. 313. On April 6, 2009, an MRI of Weitzel's lumbar spine revealed " [b]road based central/left protrusion of the L5-S1 disc with associated foraminal encroachment and impingement of the left S1 nerve root." Id. (emphasis added). On February 27, 2009, Lee R. Guterman, Ph.D., M.D., a neurologist treating Weitzel, stated that " [t]he patient has what I fear is lumbar instability at L5-S1 secondary to disc degeneration and it is now causing some foraminal compromise and pinching the nerve root going down the left leg in an S1 distribution." Tr. 312. On April 24, 2009, Dr. Guterman stated that Weitzel " may need surgical intervention in the future." Tr. 337.

The Social Security regulations contemplate the administrative law judge considering whether there are any medically determinable impairments and then when setting a claimant's residual functional capacity considering the symptoms of both medically determinable severe and non-severe impairments. 20 C.F.R. § 404.1529. The determination of whether a claimant has any severe impairments, at step two of the sequential evaluation process, is a threshold test. 20 C.F.R. § 404.1520(c). If a claimant has no impairment or combination of impairments which significantly limit the claimant's physical or mental abilities to perform basic work activities, the claimant is " not disabled" and the evaluation process ends at step two. Id. If a claimant has any severe impairments, the evaluation process continues. 20 C.F.R. § 404.1520(d)-(g). A failure to find a medical condition severe at step two will not render a decision defective if some other medical condition was found severe at step two. However, all of the medically determinable impairments both severe and non-severe must be considered at step two and then at step four when setting the residual functional capacity. The social security regulations mandate such consideration and this court has repeatedly so indicated. See, e.g., Christenson v. Astrue, Civil No. 10-1192, *13 (M.D. Pa. May 18, 2011)(Muir, J.); Little v. Astrue, Civil No. 10-1626, *25-26 (M.D.Pa. September 14, 2011)(Kosik, J.); Crayton v. Astrue, Civil No. 10-1265, *53-54 (M.D. Pa. September 27, 2011)(Caputo, J.); 20 C.F.R. § § 404.1523 and 404.1545(a)(2).

The record suggests that Weitzel suffered from at least two conditions which were not addressed by the ALJ: a problem with her cervical spine and a radiculopathy impacting her left hip and leg. The failure of the administrative law judge to find the above noted conditions as medically determinable impairments, or to give an adequate explanation for discounting them, makes his decisions at steps two and four of the sequential evaluation process defective.

The error at step two of the sequential evaluation process draws into question the administrative law judge's residual functional capacity determination and assessment of the credibility of Weitzel. The administrative law judge found that Weitzel's medically determinable impairments could reasonably cause Weitzel's alleged symptoms but that Weitzel's statements concerning the intensity, persistence and limiting effects of those symptoms were not credible. Tr. 21. This determination by the administrative law judge was based on an incomplete and faulty analysis of all of Weitzel's medically determinable impairments.

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The Court's review of the administrative record reveals that the decision of the Commissioner is not supported by substantial evidence. Therefore, pursuant to 42 U.S.C. § 405(g), the decision of the Commissioner will be vacated and the case will be remanded to the Commissioner for further proceedings.

An appropriate order will be entered.

ORDER

In accordance with the accompanying memorandum, IT IS HEREBY ORDERED THAT:

1. The Clerk of Court shall enter judgment in favor of Jo Ann Weitzel and against Carolyn W. Colvin, Acting Commissioner of Social Security, as set forth in the following paragraph.

2. The decision of the Commissioner of Social Security denying Jo Ann Weitzel disability insurance benefits is VACATED and the case REMANDED to the Commissioner of Social Security to:

2.1 Conduct a new administrative hearing and appropriately evaluate the medical evidence and the credibility of Jo Ann Weitzel in accordance with the background of this order.

3. The Clerk of Court shall CLOSE this case.


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