United States District Court, Eastern District of Pennsylvania
REPORT AND RECOMMENDATION
THOMAS J. RUETER United States Magistrates
Plaintiff, Michael Sanborn, filed this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the final decision of the Commissioner of the Social Security Administration (“Commissioner”) denying his claim for disability insurance benefits (“DIB”) under Title II of the Social Security Act (“Act”).
Plaintiff filed a Brief and Statement of Issues in Support of Request for Review (“Pl.’s Br.”), defendant filed a Response to Request for Review by Plaintiff (“Def.’s Br.”), and plaintiff filed a reply thereto (“Reply”). For the reasons set forth below, this court recommends that plaintiff’s Request for Review be DENIED.
I. FACTUAL AND PROCEDURAL HISTORY
Plaintiff filed an application for DIB alleging disability beginning January 3, 2007. (R. 132.) The claim was denied initially and a request for a hearing was filed timely. (R. 62-63, 77-78.) A hearing was held on September 17, 2009 before Administrative Law Judge (“ALJ”) Linda M. Bernstein. (R. 37-61.) Plaintiff, who was represented by counsel, appeared and testified. Agnes Gallen, a vocational expert (“VE”), also appeared and testified. (R. 57-60.) In a decision dated September 30, 2009, the ALJ found that plaintiff was not disabled under the Act. (R. 23-36.) The ALJ made the following findings:
1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2012.
2. The claimant has not engaged in substantial gainful activity since January 3, 2007, the alleged onset date (20 CFR 404.1571 et seq.).
3. The claimant has the following severe impairments: cervical radiculopathy and bilateral carpal tunnel syndrome (secondary to a work related injury on January 3, 2007) from alleged onset date (January 3, 2007) to July of 2008 per Exhibit 9F (20 CFR 404.1520(c)). As of July of 2008, the claimant suffered a mild compression fracture of a vertebra with an additional diagnosis of lower back pain.
4. The claimant does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).
5. After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) but he must have a sit/stand option.
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565).
7. The claimant was born on December 1, 1964 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. The claimant 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 material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is “not disabled, ” whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
10. Considering the claimant’s age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569 and 404.1569(a)).
11. The claimant has not been under a disability, as defined in the Social Security Act, from January 3, 2007 through the date of this decision (20 CFR 404.1520(g)).
Plaintiff filed a request for review of the decision of the ALJ that was denied and the ALJ’s decision became the final decision of the Commissioner. (R. 1-7, 21-22.)
II. STANDARD OF REVIEW
The role of this court on judicial review is to determine whether there is substantial evidence in the record to support the Commissioner’s decision. Hagans v. Comm’r of Soc. Sec., 694 F.3d 287, 292 (3d Cir. 2012) (citing 42 U.S.C. § 405(g), cert. denied, 134 S.Ct. 1274 (2014); Plummer v. Apfel, 186 F.3d 422, 427 (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 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). Substantial evidence is more than a mere scintilla of evidence, but may be less than a preponderance of the evidence. Jesurum v. Sec’y of United States Dep’t of Health and Human Serv., 48 F.3d 114, 117 (3d Cir. 1995). This court may not weigh evidence or substitute its conclusions for those of the fact-finder. Burns v. Barnhart, 312 F.3d 113, 118 (3d Cir. 2002) (citing Williams v. Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992)). As the Third Circuit has stated, “so long as an agency’s fact-finding is supported by substantial evidence, reviewing courts lack power to reverse . . . those findings.” Monsour Med. Ctr. v. Heckler, 806 F.2d 1185, 1191 (3d Cir. 1986).
To be eligible for benefits, the claimant 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. §§ 423(d)(1)(A), 1382c(a)(3)(A). Specifically, the impairments must be such that the claimant “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.” 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). Under the Act, the claimant has the burden of proving the existence of a disability and must furnish medical evidence indicating the severity of the impairment. 42 U.S.C. § 423(d)(5).
The Social Security Administration employs a five-part procedure to determine whether an individual has met this burden. 20 C.F.R. § 404.1520. This process requires the Commissioner to consider, in sequence, whether a claimant: (1) is currently employed; (2) has a severe impairment; (3) has an impairment which meets or equals the requirements of a listed impairment; (4) can perform past relevant work; and (5) if not, whether the claimant is able to perform other work, in view of his age, education, and work experience. See id. The claimant bears the burden of establishing steps one through four of the five-step evaluation process, while the burden shifts to the Commissioner at step five to show that the claimant is capable of performing other jobs existing in large numbers in the national economy. Poulos v. Comm’r of Soc. Sec., 474 F.3d 88, 92 (3d Cir. 2007).
At the administrative hearing on September 17, 2009, plaintiff was forty-four years old and had a high school education. (R. 43.) Plaintiff testified that he lived with his wife and four children. Id. Plaintiff worked as truck driver until he injured his back while working. (R. 43-44.) Plaintiff received worker’s compensation benefits for two years. (R. 43-44.) Plaintiff explained that he subsequently injured his back while helping to move a piano. (R. 45.) According to plaintiff, he cannot return to his work as a truck driver due to back and neck pain. (R. 45-46.)
With respect to his physical condition, plaintiff testified that in addition to back and neck pain, he experiences numbness, tingling, and sharp pain in his arms that “comes and goes.” (R. 46.) Plaintiff was prescribed splints to wear at night, but plaintiff indicated that he did not wear them because he felt that the splints did not help. (R. 46-47.) According to plaintiff, he has problems with his hands and will drop things, occasionally having difficulty with opening jars or containers. (R. 52.) Plaintiff testified that he also is unable to bend over due to back pain. (R. 53.) He can sit for fifteen or twenty minutes before he needs to stand. (R. 54.)
Plaintiff testified that his daily activities have been restricted as a result of his physical condition. Plaintiff represented that he “[b]asically, sit[s] around the house” and “tr[ies] to get up and walk around.” (R. 47.) When plaintiff’s wife is at work, he does not perform any chores other than cleaning the dishes. Id. Plaintiff stated that he does not take out the trash; he can “barely lift a gallon” of liquid, but can take care of his personal needs. Id. Plaintiff can go to the market and pick up “[l]ight stuff” and can walk approximately two blocks before he needs to sit and rest. (R. 48.) Plaintiff attends his children’s sports games, but cannot participate with them. Id. Plaintiff is able to drive, but limits driving to short distances. (R. 52-53.) Plaintiff watches television during the day and does light cooking. (R. 55.) He attends church services every other week. Id.
In May 2007, plaintiff was evaluated and deemed capable of lifting forty pounds and had no limits on sitting, standing, or walking. Id. It was determined that plaintiff could not return to his work as a truck driver. Id. However, in August 2008, plaintiff hurt his back while lifting a piano. Id. Plaintiff also reported that his back was injured again when he was in a car accident in January 2009. (R. 50.) At the time of the hearing, plaintiff testified that he received injections and acupuncture treatment for his back pain. (R. 49.) Plaintiff also stated that he attended physical therapy twice each week. (R. 50.) Plaintiff testified that he is unable to work because he cannot stand or sit for a long period of time and he is unable to lift anything. (R. 56.) Plaintiff stated that he has no problem with concentration. Id.
The VE testified that plaintiff’s past work as a truck driver who made deliveries to restaurants is classified as semi-skilled, medium to heavy work. (R. 57.) In response to the ALJ’s question, the VE stated that if plaintiff could sit, stand, and walk less than two hours in an eight hour work day, plaintiff would be unable to do any work. Id. In addition, the VE opined that if plaintiff was able to lift ten pounds frequently, twenty pounds occasionally, and needed to alternate sitting and standing throughout the day, plaintiff would be unable to return to his past work. (R. 58.) The VE opined that such an individual, however, could work as a parking lot cashier, which is unskilled, light duty work. Id. The VE further indicated that such an individual could work as an office helper, which is unskilled, light duty work. Id. These positions could be performed by an individual who was further limited to lifting less than ten pounds. Id. Plaintiff’s attorney added the additional restriction that the hypothetical individual is limited to “use of his bilateral hands” “up to one third of the work day” “for gross or fine manipulation.” (R. 59.) The VE opined that the hypothetical individual could not perform the identified job with this additional restriction, but that there are light duty jobs that require only occasional use of the hands, such as furniture rental clerk and information clerk. Id. According to the VE, the information clerk position and the furniture rental clerk could be performed with a sit/stand option. (R. 60.)
The ALJ found that the evidence of record supports a finding that plaintiff has the following severe impairments: cervical radiculopathy and bilateral carpal tunnel syndrome from the alleged onset date to July of 2008. (R. 28.) The ALJ further found that as of July 2008, plaintiff suffered a mild compression fracture of a vertebra with an additional diagnosis of lower back pain. Id. These impairments do not meet or medically equal one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id. Ultimately, the ALJ concluded that plaintiff retains the residual functional capacity (“RFC”) to perform light work with a sit/stand option. (R. 29.) Plaintiff contends that substantial evidence does not support the ALJ’s decision. Specifically, plaintiff avers that the ALJ erred at step two of the sequential analysis, improperly rejected opinions from treating and examining sources, failed to assess plaintiff’s work history in analyzing his credibility, and failed to determine whether there were any conflicts between the VE’s testimony and the DOT. (Pl.’s Br. at 2-18; Reply at 1-8.) In contrast, defendant maintains that substantial evidence supports the decision of the ALJ. (Def.’s Br. at 4-21.)
A. ALJ’s Step Two Findings
Plaintiff first argues that the ALJ erred at step two of the sequential analysis because the ALJ’s findings are not sufficient to permit adequate judicial review. (Pl.’s Br. at 2-4; Reply at 2.) In response, defendant contends that substantial evidence in the record supports the ALJ’s step two findings. (Def.’s Br. at 4-7.)
At step two of the sequential analysis, the ALJ must determine whether the claimant has a severe impairment or combination of impairments which significantly limits the claimant’s physical or mental ability to do basic work activities. See 20 C.F.R. § 404.1520(c). Regarding the proper analysis at step two, the Third Circuit has stated that the “burden placed on an applicant at step two is not an exacting one.” McCrea v. Comm’r of Soc. Sec., 370 F.3d 357, 360 (3d Cir. 2004). An applicant need only demonstrate something beyond “a slight abnormality or a combination of slight abnormalities which would have no more than a minimal effect on an individual’s ability to work.” Id. (citing SSR 85-28, 1985 WL 56856, at *3). Reasonable doubts regarding the severity of the impairment are to be resolved in favor of the applicant. Id. (citing Newell v. Comm’r of Soc. Sec., 347 F.3d 541, 546-47 (3d Cir. 2003)).
In the present case, at step two of the sequential analysis, the ALJ found:
The claimant has the following severe impairments: cervical radiculopathy and bilateral carpal tunnel syndrome (secondary to a work related injury on January 3, 2007) from alleged onset date (January 3, 2007) to July of 2008 per Exhibit 9F (20 CFR 404.1520(c)). As of July of 2008, the claimant suffered a mild ...