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Button v. Colvin

United States District Court, Third Circuit

December 20, 2013

LAWRENCE LEE BUTTON, Plaintiff,
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

MEMORANDUM

JOHN E. JONES, III, District Judge.

BACKGROUND

The above-captioned action is one seeking review of a decision of the Commissioner of Social Security ("Commissioner") denying Plaintiff Lawrence Lee Button's claim for social security supplemental security income benefits. Button contends that he suffers from both physical and mental disabling impairments. The physical conditions alleged are asthma and "back impairments" and the mental conditions are bipolar disorder and a learning disorder. Doc. 10, Plaintiff's Brief, p. 6.

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.

Button protectively filed[1] his application for supplemental security income benefits on March 29, 2006. Tr. 18, 68 and 107-109.[2] The application was initially denied by the Bureau of Disability Determination[3] on August 4, 2006. Tr. 18 and 70-74. On September 25, 2006, Button requested a hearing before an administrative law judge. Tr. 18 and 78. After over 26 months had elapsed, a hearing was held before an administrative law judge on December 3, 2008. Tr. 27-66. Button was represented by counsel at the hearing. Id . On February 26, 2009, the administrative law judge issued a decision denying Button's application. Tr. 18-26. As will be explained in more detail infra the administrative law judge, after considering the medical records and the testimony of Button and a vocational expert, found that Button could perform a limited range of unskilled, medium work, [4] specifically the jobs of packing machine operator and hand packer. Tr. 22, 26 and 58-59.

On April 27, 2009, Button filed a request for review with the Appeals Council of the Social Security Administration's Office of Disability Adjudication and Review, and on November 6, 2009, the Appeals Council concluded that there was no basis upon which to grant Button's request for review. Tr. 10-13. On November 19, 2009, Button requested that the Appeals Council reopen the case to allow him to submit additional information in support of his request for review. Tr. 9. On March 11, 2010, the Appeals Council granted Button's request to reopen and gave him 25 days to submit any additional arguments and information he deemed appropriate. Tr. 7.

On March 23, 2010, Button submitted to the Appeals Council a letter brief outlining his contentions. Tr. 168-171. One of the contentions raised by Button was that the administrative law judge failed to consider or ignored a statement (which primarily was a checkbox assessment form) of Button's mental work-related functional abilities (Administrative Hearing Exhibit 10F) completed on behalf of Button by Sampath Neerukonda, M.D., a treating psychiatrist. Tr. 169. After considering Button's arguments, the Appeals Council on March 6, 2012, again concluded that there was no basis upon which to grant Button's request for review. Tr. 1-5. The Appeals Council in its notice of denial of Button's request for review "gave particular attention to" the argument that Dr. Neerukonda's assessment was overlooked or ignored. Tr. 1. The Appeals Council indicated that Dr. Neerukonda's assessment was inconsistent with Dr. Neerukonda's treatment notes and specifically stated that the "treatment notes do not suggest that [Button was] disabled and [that its] comparison of Dr. Nee[r]ukonda's assessment on the checkbox assessment form do[es] not suggest that [Button] lacked the capacity for the specific jobs that the vocational expert identified as appropriate." Tr. 2. As a result of the Appeals Council's denial of review, the administrative law judge's decision stood as the final decision of the Commissioner.

Button then filed a complaint in this court on May 9, 2012. Supporting and opposing briefs were submitted and the appeal[5] became ripe for disposition on October 8, 2012, when Button elected not to file a reply brief.

Button was born in the United States on October 11, 1976, and at all times relevant to this matter was considered a "younger individual"[6] whose age would not seriously impact his ability to adjust to other work. 20 C.F.R. § 404.1563(c). Tr. 34, 62, 130 and 137.

Button stated in documents filed with the Social Security Administration that he attended the Wellsville High School, Wellsville, New York, from September, 1991 to June, 1992; he obtained a General Equivalency Diploma (GED) in 1994; and he can read, write, speak and understand the English language. Tr. 120 and 125-126. Button testified at the administrative hearing that he withdrew from high school while attending the 11th grade. Tr. 53. He further indicated that he had difficulty with math and that he was in special education classes as a result of that deficiency. Tr. 52-53, 125 and 249. Button reported that after obtaining a GED, he did not complete "any type of special job training, trade or vocational school."[7] Tr. 126.

Button has a very limited work and earnings history. Tr. Button testified that he had 30 to 35 jobs but all of relatively short duration. Tr. 53-54. He stated that the longest job lasted for 4 to 5 months. Tr. 55. The records of the Social Security Administration reveal that Button had earnings in the years 1997 through 2003.[8] Tr. 112. Button's annual earnings range from a low of $298.65 in 1999 to a high of $11, 783.50 in 2002. Id . Button's total earnings during those 7 years were $20, 620.09. Id.

A vocational expert described Button's work history as follows: (1) a taxicab driver, semi-skilled, medium work;(2) a janitorial worker, semi-skilled, medium work; (3) a telemarketer, semi-skilled, sedentary work; (4) an amusement ride operator, unskilled, light work; (5) a garbage collector, unskilled, very heavy work; (6) a fast food worker, unskilled, light work; (7) an assembly line worker, unskilled, light work; and (8) as a road repair worker, semi-skilled, heavy work. Tr. 56-57 and 122. The administrative law judge found that Button's past relevant work[9] was as a taxicab driver and janitor. Tr. 25.

The record reveals that Button has a history of alcohol and drug abuse[10] as well as criminal convictions. Tr. 51, 221, 244 and 249. Button also reported smoking one pack of cigarettes per day for 20 years.[11] Tr. 228.

Button claims that he became disabled on February 1, 2006.[12] Tr. 32 and 116. In a document filed with the Social Security Administration he stated that he suffers from "bi-polar (sic) disorder, kidney problems, asthma, back problems [and a] learning disability." Tr. 121. Button stated that he "was diagnosed with bi-polar (sic) in [February, 2006]" and that he has "always had problems keeping a job because [he] couldn't handle stress in the workplace." Id . He further contended that he "thinks about things differently than a normal person would because of the bi-polar (sic) disorder, " "sometimes" has "pain... from the back problems" and "never really understood why [he] was different from other people." Id.

At the administrative hearing, Button was asked why he set February 1, 2006, as his alleged disability onset date. Tr. 32. The following exchange took place between Button and the administrative law judge:

Q... I'm curious as to that date, whatstkind of problems were you experiencing as of February 1, 2006?
A I was easily distracted. When I would have to do something. I had a hard time following through, keeping my mind on one thing. I had times of severe depression, where I couldn't even hardly get out of bed because I was just so depressed.
Q And had this stbeen a problem for (sic) prior to the date, February the 1, 2006?
A Yes, sir.
Q Okay. In other words, this problem had existed for some time, but you continued to try to work as best you could?
A Correct.
Q. Okay. Can you give me an idea as to any other problems besides this depression and difficulty concentrating, that you might have been experiencing or that may have contributed to these problems in thinking?
A Frustration, I would get frustrated with a vast number of things, such as on a job, for instance, my telemarketing job, I got to the point where I got so frustrated that I was going away from my job station just to get away from the pressure.

Tr. 32-34. Button went on to testify that his last job was in 2004 as a janitor in Florida which he obtained through a temporary employment agency and that the employment as a janitor lasted for three months. Tr. 33. Button further stated that the janitor position was his last employment. Tr. 34.

Although Button testified that he last worked in 2004, in a document entitled "Disability Report - Adult - Form SSA-3368" ("Disability Report") Button stated that he stopped working on December 31, 2003, and that he worked as a janitor in 2003.[13] Tr. 121-122. Earnings records from the Social Security Administration are consistent with what Button reported in the Disability Report. Tr. 115. The earnings record indicates that Button last worked for Gulf Coast Temporaries, Inc., in 2003. Id.

The alleged disability onset date of February 1, 2006, has no impact on Button's application for supplemental security income benefits because supplemental security income is a needs based program and benefits may not be paid for "any period that precedes the first month following the date on which an application is filed or, if later, the first month following the date all conditions for eligibility are met." See C.F.R. § 416.501. As stated above Button's SSI application was filed on March 29, 2006. Consequently, Button is not eligible for SSI benefits for any period prior to April 1, 2006.

During his testimony at the administrative hearing and in an untitled and undated document filed with the Social Security Administration, Button indicated that he lives with his girlfriend and three minor children; Children and Youth Services assists him with parenting and housekeeping classes in his home; his neighbors assist him with babysitting; and he is able to care for his children, including getting them up in the morning, bathing and feeding them and getting them on the bus for school. Tr. 44-46 and 128. Button further indicated he is able to go grocery shopping although he rests while doing so and he is able to carry about 4 bags of groceries; his hobbies include reading and "playing" with computers; he does housecleaning, including sweeping; he is able to climb 40 steps without resting; he has no problems sitting "unless it's a hard surface;" he can lift and carry "about 40 lbs" but his "back starts to hurt;" he is able to take care of his personal needs, such as dressing himself and taking a shower; he can change and make a bed; he is able to use a regular touch tone telephone, a standard size TV remote control, and a knife and fork; he is able to fasten ...


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