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Bermudez v. Colvin

United States District Court, Middle District of Pennsylvania

August 11, 2014

CARLOS MANUEL BERMUDEZ, Plaintiff,
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

CONNER JUDGE

REPORT AND RECOMMENDATION DOCS. 11, 13, 14, 15

GERALD B. COHN UNITED STATES MAGISTRATE JUDGE

I. Procedural History

On December 4, 2009, Carlos Manuel Bermudez (“Plaintiff”) protectively filed an application for Title II Social Security Disability benefits (“DIB”), and an application for Title XVI application for Supplemental Security Income (“SSI”), with a later amended onset date of September 6, 2009. (Tr. 9).

This application was denied, and on March 28, 2011, a hearing was held before an Administrative Law Judge (“ALJ”), where Plaintiff was represented by counsel. (Tr. 9). Plaintiff and a vocational expert testified. On June 10, 2011, the ALJ issued a decision finding that Plaintiff was not entitled to DIB or SSI because Plaintiff could perform a limited range of light work with a sit / stand option (Tr. 6-18). On December 13, 2012, the Appeals Council denied Plaintiff’s request for review, thereby affirming the decision of the ALJ as the “final decision” of the Commissioner. (Tr. 1-3).

On January 23, 2013, Plaintiff filed the above-captioned action pursuant to 42 U.S.C. §§ 405(g); 1383(c)(3), to appeal the decision of the Commissioner of the Social Security Administration denying social security benefits. Doc. 1.

On May 17, 2013, Commissioner filed an answer and administrative transcript of proceedings. Docs. 10, 11. In July and August 2013, the parties filed briefs in support. Docs. 13, 14, 15. On April 30, 2014, the Court referred this case to the undersigned Magistrate Judge. On June 12, 2014, Plaintiff notified the Court that the matter is ready for review. Doc. 17.

II. Standard of Review

When reviewing the denial of disability benefits, we must determine whether the denial is supported by substantial evidence. Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988); Johnson v. Commissioner of Social Sec., 529 F.3d 198, 200 (3d Cir. 2008). Substantial evidence “does not mean a large or considerable amount of evidence, but rather such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Pierce v. Underwood, 487 U.S. 552, 564 (1988); Hartranft v. Apfel, 181 F.3d 358, 360. (3d Cir. 1999); Johnson, 529 F.3d at 200.

This is a deferential standard of review. See Jones v. Barnhart, 364 F.3d 501, 503 (3d Cir. 2004). Substantial evidence is satisfied without a large quantity of evidence; it requires only “more than a mere scintilla” of evidence. Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir. 1999). It may be less than a preponderance. Jones, 364 F.3d at 503. Thus, if a reasonable mind might accept the relevant evidence as adequate to support the conclusion reached by the Acting Commissioner, then the Acting Commissioner’s determination is supported by substantial evidence and stands. Monsour Med. Ctr. v. Heckler, 806 F.2d 1185, 1190 (3d Cir. 1986).

To receive disability or supplemental security benefits, 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. § 423(d)(1)(A); 42 U.S.C. § 1382c(a)(3)(A).

Moreover, the Act requires further that a claimant for disability benefits must show that he has a physical or mental impairment of such a 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.” 42 U.S.C. § 423(d)(2)(A); 42 U.S.C. § 1382c(a)(3)(B).

III. Relevant Facts in the Record

A. Background

Plaintiff was 53 years old at the time of the ALJ’s decision (Tr. 18, 39, 190). He obtained his GED in 1991 (Tr. 62). Plaintiff’s past work was as an office machine server, offset print operator, fork lift operator, delivery / merchandise, and cleaner / industrial (Tr. 16, 55). He can maintain his personal care needs, but obtains help from his wife to clip his toenails and care for his feet (Tr. 64).

He can wash dishes and take trash to just outside the front door (Tr. 66). To enter and exit his apartment, Plaintiff must walk up and down twelve steps (Tr. 41). Plaintiff testified at hearing that he does not feel pain in his feet (Tr. 45). He further testified that he has had a burning sensation in his feet since 2007 and has trouble feeling the ground when he walks (Tr. 62, 72-73). Plaintiff tries to take walks (Tr. 76-77). He testified at hearing that he did not drive due to neuropathy in his feet (Tr. 62). However, he submitted a function report as part of his disability filings where he admitted that he sometimes borrowed his daughter’s car to attend doctors’ appointments and pick up his wife from work (Tr. 229-30). Plaintiff also reported that he took his daughter’s dog for walks and served him food and water (Tr. 231). He further reported sometimes making sandwiches and complete meals (Tr. 232).

B. Relevant Medical Evidence[1]

1. Medical Evidence Relevant to Neuropathy in Plaintiff’s Feet

Plaintiff obtained treatment for an eschar callus in his left foot in September 2009 (Tr. 287-89, 384). Although Plaintiff denied any pain from the callus, Junia Tiruchelvam, M.D., recommended he not work because he was required to stand for about twelve hours during his work shifts (Tr. 289). Dr. Tiruchelvam removed the callus on September 14, 2009, and noted no evidence of infection or ulceration (Tr. 289). During a physical examination later that month, podiatrist David Granger, D.P.M., observed that Plaintiff had a normal base and angle of gait, his stance was stable without ataxia, and opined that Plaintiff could walk as tolerated with a surgical shoe (Tr. 335-36). Dr. Granger diagnosed Plaintiff with diabetes with neuropathy, lateral foot wound and peripheral vascular disorder (PVD) (Tr. 335).

In October 2009, the eschar recurred on Plaintiff’s left foot and he sought treatment with a surgeon to resolve it (Tr. 290, 333). An October 13, 2009 arterial study of Plaintiff’s lower legs revealed non-compressible blood vessels, normal pulse volume, and normal ABI (ankle-brachial index) levels on both sides at that time, with decreased great toe indices on the left side (Tr. 302, 341). In other words, Plaintiff did not have PVD.

In November 2009, Plaintiff consulted with Sandra Fortna, M.D., who opined that Plaintiff had foot cellulitis and a diabetic ulcer on his left foot; she recommended debridement and antibiotic treatment (Tr. 303, 306). November 13, 2009 x-rays confirmed the ulcer (Tr. 314). Plaintiff underwent a surgical procedure on November 17, 2009 that removed the ulcer (Tr. 319-20, 327-28). By January 2010, Dr. Granger assessed Plaintiff’s foot wound as healed and commended Plaintiff on “taking good care of his foot” (Tr. 324). Dr. Granger noted under “work activity” “ambulation as tolerated” (Tr. 324). Plaintiff testified that his foot had healed “pretty well” by the end of January 2010 (Tr. 53). Dr. Granger noted in March 2010 “complete healing” of Plaintiff’s left foot ulceration, commenting “[p]atient is doing well at this point. He will continue with his diabetic shoes and daily inspection” (Tr. 365). Plaintiff testified that despite his foot healing, he did not return to work after March 2010 due to other conditions, namely his diabetes and back pain (Tr. 54).

Aruna Chelliah, M.D., opined in October 2010 that Plaintiff had poor glycemic control, eating irregularly and with poor habits (Tr. 371-72). Dr. Chelliah referred Plaintiff to diabetic education classes and advised him on diet and foot care (Tr. 372). She advised him not to walk barefoot and to get a shoe with the front reinforced to protect his toes (Tr. 372). Her physical examination revealed that Plaintiff had normal pulses in his extremities, no pedal edema, no chronic skin changes, but absent touch sensation, vibration sense, and position sense (Tr. 375). She also found that Plaintiff had left foot deformity due to surgery, but no ulceration, abrasion, or onychomycosis (fungal infection) (Tr. 375).

Tammy Miller, M.D., examined Plaintiff in September 2010. During this examination, Dr. Miller found that Plaintiff moved his lower extremities equally and at full strength (5/5), and could ambulate independently (Tr. 394). Similarly, in November 2010, Shelly J. Levenstein, CRNP, observed that Plaintiff was ambulatory without assistance, and had no new rashes or lesions on his skin (Tr. 386).

IV. Review of ALJ Decision

A five-step evaluation process is used to determine if a person is eligible for disability benefits. See 20 C.F.R. §§ 404.1520, 416.920; see also Plummer, 186 F.3d at 428. If the Commissioner finds that a Plaintiff is disabled or not disabled at any point in the sequence, review ...


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