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Plank v. Colvin

United States District Court, Third Circuit

November 18, 2013

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


CAROL SANDRA MOORE WELLS, Chief Magistrate Judge.

Pamela Dawn Plank ("Plaintiff") seeks judicial review, pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3) of the final decision of the Commissioner of the Social Security Administration ("Commissioner"), denying her claim for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act ("the Act"). Plaintiff has filed a request for review, the Commissioner has responded to it and Plaintiff has filed a reply brief. This case was referred to the undersigned by the Honorable Paul S. Diamond, under the authority of 28 U.S.C. § 636(b)(1)(B), for preparation of a report and recommendation. For the reasons set forth below, it is recommended that Plaintiff's request for review be GRANTED in part and DENIED in part and that the case be REMANDED to the Commissioner for further proceedings consistent with this Report and Recommendation.


On March 31, 2009, Plaintiff protectively applied for DIB benefits alleging disability, since September 1, 2008, as a result of tennis elbow, carpel tunnel syndrome, a learning disability, diabetes, bilateral wrist and arm nerve damage and pain, and borderline intellectual functioning. (R. 61, 145). After benefits were denied on October 2, 2009, (R. 61), Plaintiff requested and was granted an administrative hearing. (R. 69, 90-103). On October 20, 2010, Plaintiff, represented by counsel, and Vocational Expert ("VE") Dr. Paul Anderson, testified before Daniel Myers, Administrative Law Judge ("ALJ"). (R. 19-60). On November 9, 2010, ALJ Myers, using the sequential evaluation process for disability, [2] issued an unfavorable decision finding Plaintiff to be not disabled. (R. 18). Finally, on May 17, 2012, the Appeals Council denied Plaintiff's request for review, rendering the ALJ's decision the final decision of the Commissioner. (R.1-5).


A. Personal History

Plaintiff, born on October 7, 1965, was forty-two years old and a younger person[3] on September 1, 2008, the alleged onset date of her disability. (R. 166). She completed the twelfth grade in a special education program. (R. 36, 149). She previously worked as an assembler and sander/assembler at a cabinet company. (R. 136). Plaintiff is married and lives in a ranch-style home with her husband and adult son. (R. 28, 44, 47-48).

B. Administrative Hearing Testimony

At the October 20, 2010 administrative hearing, Plaintiff testified that she has not worked after September 2008 because of diabetes, pain in her legs, hands and arms. (R. 26). She also has pain in both of her wrists, forearms and elbows. (R. 29). When Plaintiff experiences throbbing pain in her legs, at least a couple days per week, she uses a heating pad and takes Tylenol to alleviate the pain. (R. 30-31, 45). Her diabetes is uncontrolled and often causes headaches, nausea, jitteriness and lightheadedness. (R. 31-32, 42-43). Plaintiff's headaches recur at least every other day; Plaintiff takes Tylenol or Aleve to treat them. (R. 32). Plaintiff has bilateral difficulty grasping objects; she is right-handed and her left hand is weaker than her right hand. (R. 26-27). Her fingers on both hands are often numb. (R. 30). Plaintiff has difficulty sleeping at night and must wear a brace on her wrists at night because her hands become numb when she sleeps. (R. 46, 51).

Plaintiff's husband manages the household finances and her son handles the home maintenance. (R. 28, 44-45, 50). Plaintiff has difficulty performing household chores because her hands become numb; she often drops objects. (R. 47, 51). For example, Plaintiff had dropped a gallon of milk and dishes on the floor a week prior to the hearing. (R. 27, 47). She is able, however, to load and empty the dishwasher and dust the furniture in her home. (R. 47, 50). Plaintiff alleges difficulty climbing stairs from the basement of her home, where her washing machine is located, to the ground level and is often out of breath when she does. (R. 47-48). She launders her clothes with the assistance of her son who carries the basket(s) full of clothes up to and down from her basement. (R. 47).

Plaintiff can walk only one block before she must stop, because of pain in her legs and shortness of breath. (R. 49). She can stand or sit for one hour, see (R. 49), write for ten to fifteen minutes, see (R. 28), drive short distances, because of numbness in her right leg and pain in her right foot, alternating arms to steer, inasmuch as her arms, wrists, and elbows tire. (R. 28-29, 37-38). Although Plaintiff can lift her arms above her head, she cannot place them behind her back. (R. 29). She washes her own hair, but her husband must wash her back, see (R. 29, 51), and helps her dress, because she has difficulty buttoning and fastening her clothing. (R. 29-30). Plaintiff has no hobbies and spends her day watching television. (R. 37-38). She does not read, because it triggers headaches; also, she has with her recall and reading comprehension. (R. 37-38, 52). She is able to prepare her own meals. (R. 37).

C. Vocational Testimony

At the October 20, 2010 administrative hearing, VE Anderson designated Plaintiff's previous sander and fabrication positions as unskilled[4] and light work[5]. (R. 53). The ALJ asked VE Anderson to consider if a hypothetical person who is forty-five years old, with a high school education, limited to unskilled work, right hand dominant with the strength of twenty and ten in the right hand and ten and less than ten in the left hand; can stand or walk for up to six hours in an eight-hour day; lift and carry up to twenty pounds occasionally and ten pounds frequently; occasionally reach bilaterally overhead; occasionally push and pull with her upper extremities; frequently push and pull with her lower extremities; occasionally perform bilateral handling and fingering; and must avoid vibrations, could perform Plaintiff's past relevant work. (R. 53-54). VE Anderson opined that while such an individual could not perform Plaintiff's prior positions such an individual could perform unskilled work as a bakery worker, conveyor line (416 positions in the local labor market, 2, 300 regionally and 57, 000 nationally); usher (400 positions in the local labor market, 2, 300 regionally and 58, 000 nationally); and surveillance system monitor (540 positions in the local labor market, 3, 300 regionally and 83, 000 nationally).[6] (R. 54-55).

Plaintiff's counsel asked VE Anderson whether the positions he identified could be performed with a sit/stand option. (R. 55). VE Anderson responded that, based upon his personal observations, the positions he identified could be performed with a sit/stand option. Id. The VE further opined that inability to make judgments on simple work related decisions would impose little impact on the simple unskilled work previously identified. (R. 56-57). Next, Plaintiff's counsel asked the VE to consider a hypothetical individual with marked limitations in the ability to respond appropriately to work pressures in a usual work setting and to respond appropriately to changes in a routine work setting. (R. 57). The VE responded that an individual's inability to respond to changes in a routine work setting would erode more than ninety-five percent of the positions identified, because work pressures are inherent in every job. (R. 57-58). Finally, Plaintiff's counsel inquired whether a hypothetical individual with a GAF[7] score of 50[8] could perform the positions identified. (R. 58). The VE opined that a GAF score is a subjective evaluation and a GAF score of 50 would not erode the positions he identified. (R. 58-59).


After the October 1, 2010, administrative hearing, the ALJ issued the following relevant findings:

3. [Plaintiff] has the following severe impairments: bilateral carpal and cubital tunnel syndrome, diabetes, learning disability, borderline intellectual functioning, depression and anxiety (20 C.F.R. 404.1520(c)).
4. [Plaintiff] does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. 404.1520(d), 404.1525 and 404.1526).
5. After careful consideration of the entire record, the undersigned finds that the [Plaintiff] has the residual functional capacity to perform light work as defined in 20 C.F.R. 404.1567(b) except that she is limited to lifting/carrying with the dominant right hand 20 pounds occasionally and 10 pounds frequently; lifting/carrying with the left hand 20 pounds occasionally and 10 pounds frequently; standing/walking 6 hours; sitting 6 hours; must alternate sitting and standing; limited to occasional overhead reaching; occasional pushing/pulling with the upper extremities; frequent pushing/pulling with the lower extremities; occasional handling, fingering, and feeling; no exposure to vibrations; and is limited to unskilled work.
6. [Plaintiff] is unable to perform any past relevant work (20 CFR 404.1565).
7. [Plaintiff] was born on October 7, 1965 and was 42 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date (20 CFR 404.1563).
8. [Plaintiff] has at least a high school education and is able to communicate in English (20 CFR 404.1564).
9. Transferability of job skills is not an issue in this case because [Plaintiff's] past relevant work is unskilled (20 CFR 404.1568).
10. Considering [Plaintiff's] age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that [Plaintiff] can perform (20 CFR 404.1569, 404.1569(a)).
11. [Plaintiff] has not been under a disability, as defined in the Social Security Act, from September 1, 2008 through the date of this decision (20 C.F.R. 404.1520(g)).

(R. 12-18).


A. Standard of Judicial Review

Judicial review of the Commissioner's final decision is as follows. The Commissioner's findings of fact will not be disturbed if they are supported by substantial evidence. Schaudeck v. Comm'r of Soc. Sec. Admin., 181 F.3d 429, 431 (3d Cir. 1999). Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971). It is more than a mere scintilla of evidence, but may be less than a preponderance. Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988). Overall, this test is deferential to the ALJ and the Court should affirm the ALJ's findings of fact, if they are supported by substantial evidence even when the Court, acting de novo, might have reached a different conclusion. Monsour Medical Center v. Heckler, 806 F.2d 1185, 1190-91 (3d Cir. 1986), cert. denied, 482 U.S. 905 (1987). On the other hand, the Commissioner's legal conclusions are subject to plenary review. Schaudeck, 181 F.3d at 431.

B. Burden of Proof in Disability Proceedings

In order to be found "disabled" under the Act, Plaintiff must carry the initial burden of demonstrating that she is unable to engage in "any substantial gainful activity by reason of any medically determinable physical or mental impairment... which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. § 423 (d)(1)(A); 20 C.F.R. §§ 404.1505(a), 416.905(a). Plaintiff may establish a disability through: (a) medical evidence meeting one or more of the serious impairments detailed in 20 C.F.R., Part 404, Subpart P, App. 1; or (b) proof that the impairment is severe enough that Plaintiff ...

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