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Farr v. Colvin

United States District Court, M.D. Pennsylvania

January 6, 2014

KEVIN FARR, Plaintiff,
v.
CAROLYN W. COLVIN, [1] Acting Commissioner of Social Security, Defendant.

MEMORANDUM

RICHARD P. CONABOY, District Judge.

Here we consider Plaintiff's appeal from the Commissioner's denial of Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security Act ("Act"). (Doc. 1.) The Administrative Law Judge ("ALJ") who originally evaluated the claim found that Plaintiff had the residual functional capacity ("RFC") to perform a full range of work at all exertional levels with some nonexertional limitations, that jobs existed which he could perform, and, therefore, Plaintiff was not under a disability as defined in the Social Security Act from the alleged onset date of January 1, 2004, through the date of the decision, January 12, 2011. (R. 24, 26-27.) With this action, Plaintiff argues that the determination of the Social Security Administration is error for three reasons: 1) the ALJ's RFC determination is not supported by substantial evidence; 2) the ALJ's credibility determination is not supported by substantial evidence; and 3) the ALJ's step five determination is not supported by substantial evidence. (Doc. 8 at 5.)

For the reasons discussed below, we conclude remand to the Acting Commissioner is required.

I. Background

On May 13, 2009, Plaintiff protectively filed applications for Title II Disability Insurance benefits and Title XVI Supplemental Security Income. (R. 96-102.) Plaintiff, whose date of birth is March 25, 1963, claimed disability beginning on January 1, 2004. (R. 96.) Plaintiff listed the illnesses, injuries, or conditions that limited his ability to work as "epilepsy, grand mal seizures." (R. 115.) He added that he

has at least one epileptic seizure a month and at least one grand mal seizure a a month. Seizures are unpredictable, body goes into convulsions and last about 5 min. It takes a couple hours to recover from seizure. After having epileptic seizure he becomes unaware of what's going on around him.

(R. 115.) At the time of his application, Plaintiff was married and living with his spouse. (R. 99.) Plaintiff had past work as a carpenter and roofer. (R. 26)

The Social Security Administration denied Plaintiff's applications by decisions issued on November 18, 2009. (R. 54-76.) On December 9, 2009, Plaintiff filed a timely Request for Hearing before an Administrative Law Judge. (R. 78.) On January 7, 2011, ALJ Ronald Sweeda held a hearing at which Plaintiff and a vocational expert ("VE") testified. (R. 32-47.)

In response to the question of why he was unable to work, Plaintiff responded that his grand mal seizures kept him from working. (R. 37.) Plaintiff testified that he had one to two grand mal seizures per month and one to two petit mal seizures per week. (R. 38-39.) He stated the grand mal seizures, which last five to ten minutes, cause him to fall down and afterwards he usually sleeps for up to half a day. (R. 39.) Plaintiff agreed with the ALJ that that the petit mal seizures are "staring spells [] essentially." (R. 39.) Plaintiff added that they can last two days and, although he can carry on a partial conversation during the course of the seizure, what he is saying does not make sense. (R. 39.) At the time of the hearing, Plaintiff was taking Carbitrol and Lavetiractem. (R. 38.) Plaintiff reported that his treating physician, Mitchell J. Gross, M.D., was adjusting his medications to try to better control the seizures but the last adjustment (adding Lavetiractem) did not make any difference. (R. 39-40.)

Following Plaintiff's testimony, the ALJ asked the VE whether there were jobs for a hypothetical claimant with the same age, education and work experience as Plaintiff with no exertional limitations, but with nonexertional limitations in that the individual should not be required to do any balancing, any climbing of ladders or scaffolds, and have no exposure to heights or to dangerous moving machinery. (R. 44-45.) After confirming that work as a carpenter would be precluded, the VE identified several other positions. (R. 45.) The ALJ then added the limitation indicated by Dr. Gross-because of seizure activity the individual could be expected to miss three days a month or more of work unexpectedly. (R. 45.) The VE responded there would be no jobs for such a person. (R. 55.)

By decision of January 12, 2011, ALJ Sweeda found that Plaintiff was not disabled within the meaning of the Social Security Act. (R. 27.) The following findings of fact and conclusions of law from the ALJ's decision are relevant to Plaintiff's claimed errors: 1) Plaintiff has the residual functional capacity to perform a full range of work at all exertional levels but has nonexertional limitations in that he should not balance, climb ladders, ropes, or scaffolds, or be exposed to unprotected heights or moving machinery (R. 24); and 2) there are jobs that exist that claimant can perform (R. 26).

Because the ALJ determined that jobs exist in the national economy that Plaintiff can perform (R. 26), he concluded that Plaintiff had not been under a disability as defined in the Social Security Act from January 1, 2004, through the date of his decision, January 12, 2011. (R. 27.)

Plaintiff requested review of the ALJ's decision, and on May 24, 2012, the Appeals Council issued a notice denying Plaintiff's request. (R. 1.) Therefore, the ALJ's decision became the decision of the Commissioner.

Plaintiff filed this action on July 23, 2012. (Doc. 1.) He filed his brief in support of the appeal on December 9, 2012. (Doc. 8.) Commissioner Astrue filed his opposition brief on February 3, 2013. (Doc. 12.) Plaintiff filed a reply brief on February 15, 2013. (Doc. 13.) Therefore, this matter is fully briefed and ripe for disposition.

II. Discussion

A. Relevant Authority

The Commissioner is required to use a five-step analysis to determine whether a claimant is disabled.[2] It is necessary for the Commissioner to ascertain: 1) whether the applicant is engaged in a substantial activity; 2) whether the applicant is severely impaired; 3) whether the impairment matches or is equal to the requirements of one of the listed impairments, whereby he qualifies for benefits without further inquiry; 4) whether the claimant can perform his past work; 5) whether the claimant's impairment together with his age, education, and past work experiences preclude him from doing any other sort of work. 20 C.F.R. §§ 404.1520(b)-(g), 416.920(b)-(g); see Sullivan v. Zebley , 493 U.S. 521, 110 S.Ct. 885, 888-89 (1990).

The disability determination involves shifting burdens of proof. The initial burden rests with the claimant to demonstrate that he or she is unable to engage in his or her past relevant work. If the claimant satisfies this burden, then the Commissioner must show that jobs exist in the national economy that a person with the claimant's abilities, age, education, and work experience can perform. Mason v. Shalala , 993 F.2d 1058, 1064 (3d Cir. 1993).

This Court's review of the Commissioner's final decision is limited to determining whether there is substantial evidence to support the Commissioner's decision. 42 U.S.C. § 405(g); Hartranft v. Apfel , 181 F.3d 358, 360 (3d Cir. 1999). A reviewing court is "bound by the ALJ's findings of fact if they are supported by substantial evidence in the record." Plummer v. Apfel , 186 F.3d 422, 427 (3d Cir. 1999). Substantial evidence means "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales , 402 U.S. 389, 401 (1971); Plummer , 186 F.3d at 427 (quoting Ventura v. Shalala , 55 F.3d 900, 901 (3d Cir. 1995)); see also Chandler v. Comm'r of Soc. Sec. , 667 F.3d 356, 359 (3d Cir. 2011). Therefore, we will not set aside the Commissioner's final decision if it is supported by substantial evidence, even if we would have reached different factual conclusions. Hartranft , 181 F.3d at 360 ( citing Monsour Medical Center v. Heckler , 806 F.2d 1185, 1190-91 (3d Cir. 1986); 42 U.S.C. § 405(g) ("[t]he findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive..."). "However, even if the Secretary's factual findings are supported by substantial evidence, [a court] may review whether the Secretary, in making his findings, applied the correct legal standards to the facts presented." Friedberg v. Schweiker , 721 F.2d 445, 447 (3d Cir. 1983) (internal quotation omitted). An ALJ's decision can only be reviewed by a court based on the evidence that was before the ALJ at the time he or she made his or her decision. Matthews v. Apfel , 239 F.3d 589, 593 (3d Cir. 2001).

At the outset of our review of whether the ALJ has met the substantial evidence standard regarding the matters at issue here, we note the Third Circuit has repeatedly emphasized the special nature of proceedings for disability benefits. See Dobrowolsky v. Califano , 606 F.2d 403, 406 (3d Cir. 1979). These proceedings are not strictly adversarial, but rather the Social Security Administration provides an applicant with assistance to prove his claim. Id. "These proceedings are extremely important to the claimants, who are in real need in most instances and who claim not charity but that which is rightfully due as provided for in Chapter 7, Subchapter II, of the Social Security Act." Hess v. Secretary of Health, Education and Welfare , 497 F.2d 837, 840 (3d Cir. 1974). As such, the agency must take extra care in developing an administrative record and in explicitly weighing all evidence. Dobrowolsky , 606 F.2d at 406. Further, the court in Dobrowolsky noted "the cases demonstrate that, consistent with the legislative purpose, courts have mandated that leniency be shown in establishing the claimant's disability, and that the Secretary's responsibility to rebut it be strictly construed." Id.

Finally, the Third Circuit has recognized that it is necessary for the Secretary to analyze all evidence. If he has not done so and has not sufficiently explained the weight he has given to all probative exhibits, "to say that his decision is supported by substantial evidence approaches an abdication of the court's duty to scrutinize the record as a whole to determine whether the conclusions reached are rational." Dobrowolsky , 606 F.2d at 407. In Cotter v. Harris , 642 F.2d 700, 705 (3d Cir. 1981), the Circuit Court clarified that the ALJ must not only state the evidence considered which supports the result but also indicate what evidence was rejected. "Since it is apparent that the ALJ cannot reject evidence for no reason or the wrong reason, an explanation from the ALJ of the reason why probative evidence has been rejected is required so that a reviewing court can determine whether the reasons for rejection were improper." Id. at 706-07. However, the ALJ need not undertake an exhaustive discussion of all the evidence. See, e.g., Knepp v. Apfel , 204 F.3d 78, 83 (3d Cir. 2000). "There is no requirement that the ALJ discuss in its opinion every tidbit of evidence included in the record." Hur v. Barnhart , 94 F.Appx. 130, 133 (3d Cir. 2004). Only where the ALJ rejects conflicting probative evidence must he fully explain his reasons for doing so. See, e.g., Walker v. Comm'r of Soc. Sec. , 61 F.Appx. 787, 788-89 (3d Cir. 2003) (citing Kent v. Schweiker , 710 F.2d 110, 114 (3d Cir. 1983)). Further, the ALJ does not need to use particular language or adhere to a particular format in conducting his analysis. Jones v. Barnhart , 364 F.3d 501, 505 (3d Cir. 2004). "[W]here [a reviewing court] can determine that there is substantial evidence supporting the Commissioner's decision, ... the Cotter doctrine is not implicated." Hernandez v. Commissioner of Social Security , 89 Fed.Appx. 771, 774 (3d Cir. 2004) (not precedential).

B. Plaintiff's Alleged Errors

As set out above, Plaintiff asserts the ALJ erred on three bases: 1) the ALJ's RFC determination is not supported by substantial evidence; 2) the ALJ's credibility determination is not supported by substantial evidence; and 3) the ALJ's step five determination is not supported by substantial evidence. (Doc. 8 at 5.) We will address each in turn.

1. Residual Functional Capacity

Plaintiff asserts the ALJ's residual functional capacity assessment is error for two reasons. First, the ALJ incorrectly afforded "little weight" to the opinion of Plaintiff's treating physician, Dr. Gross. (Doc. 8 at 6.) Second, the ALJ incorrectly afforded "great weight" to the ...


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