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Tucker v. Colvin

United States District Court, M.D. Pennsylvania

September 8, 2014

BRETT D. TUCKER, Plaintiff,
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

MEMORANDUM Docs. 1, 6, 7, 9, 10, 11

GERALD B. COHN, Magistrate Judge.

I. Introduction

The above-captioned action is one seeking review of a decision of the Commissioner of Social Security ("Commissioner") denying the applications of Plaintiff Brett D. Tucker for supplemental security income ("SSI") and disability insurance benefits ("DIB") on the ground that Plaintiff could engage in past relevant work as a data entry clerk. In concluding that Plaintiff was not disabled within the meaning of the Social Security Act, 42 U.S.C. §§ 401-433, 1382-1383 the "Act"), ALJ had to reject the opinion of every physician who either treated or examined Plaintiff for either mental or physical impairments, and relied instead on state agency physicians who never saw or treated him. The ALJ's determination that Plaintiff could perform his past relevant work as a data entry clerk as actually performed lacks substantial evidence because the ALJ failed to elicit testimony regarding the physical and mental requirements of the job as actually performed. The ALJ's determination that Plaintiff could perform his past relevant work as a data entry clerk as generally performed lacks substantial evidence because the ALJ failed to properly evaluate Plaintiff's testimony and the opinions by all physicians who examined or treated him that he would be unable to sit for the requisite six hours, particularly without a sit/stand option. This determination also lacks substantial evidence because the ALJ failed to properly evaluate Plaintiff's testimony, the observations of the state agency examiner, and the opinions of all psychiatrists and counselors who treated him that he had difficulty with understanding, comprehension, and abstract thought processes. The ALJ failed to develop a record that would allow the Court to determine whether Plaintiff could perform other work in the national economy. Consequently, the ALJ's decision that Plaintiff was not disabled by virtue of his ability to perform past relevant work lacks substantial evidence.[1]

II. Procedural Background

On June 18, 2010 and July 12, 2010, Plaintiff filed an application for SSI under Title XVI of the Act and for DIB under Title II of the Act. (Tr. 174-79). On October 15, 2010, the Bureau of Disability Determination denied these applications (Tr. 87-111), and Plaintiff filed a request for a hearing on November 1, 2010. (Tr. 112-13). On November 10, 2011, an ALJ held a hearing at which Plaintiff - who was represented by an attorney - and a vocational expert appeared and testified. (Tr. 40-76). On December 28, 2011, the ALJ found that Plaintiff was not disabled and not entitled to benefits. (Tr. 19-38). On January 30, 2012, Plaintiff filed a request for review with the Appeals Council (Tr. 8-18), which the Appeals Council denied on August 7, 2013, thereby affirming the decision of the ALJ as the "final decision" of the Commissioner. (Tr. 1-5).

On September 19, 2013, Plaintiff filed the above-captioned action pursuant to 42 U.S.C. § 405(g) to appeal the decision of the Commissioner. (Doc. 1). On November 22, 2013, the Commissioner filed an answer and administrative transcript of proceedings. (Docs. 6, 7). On January 6, 2014, Plaintiff filed a brief in support of his appeal ("Pl. Brief"). (Doc. 9). On February 10, 2014, Defendant filed a brief in response ("Def. Brief"). (Doc. 10). On February 20, 2014, Plaintiff filed a brief in reply ("Pl. Reply"). (Doc. 11). On May 5, 2014, the Court referred this case to the undersigned Magistrate Judge. Both parties consented to the referral of this case for adjudication to the undersigned on June 11, 2014, and an order referring the case to the undersigned for adjudication was entered on June 17, 2014. (Doc. 13, 14).

III. Standard of Review

When reviewing the denial of disability benefits, the Court must determine whether substantial evidence supports the denial. 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 is a deferential standard of review. See Jones v. Barnhart , 364 F.3d 501, 503 (3d Cir. 2004). Substantial evidence "does not mean a large or considerable amount of evidence." Pierce v. Underwood , 487 U.S. 552, 564 (1988). Substantial evidence requires only "more than a mere scintilla" of evidence, Plummer v. Apfel , 186 F.3d 422, 427 (3d Cir. 1999), and may be less than a preponderance. Jones , 364 F.3d at 503. If a "reasonable mind might accept the relevant evidence as adequate" to support a conclusion reached by the Commissioner, then the Commissioner's determination is supported by substantial evidence. Monsour Med. Ctr. v. Heckler , 806 F.2d 1185, 1190 (3d Cir. 1986); Hartranft v. Apfel , 181 F.3d 358, 360 (3d Cir. 1999); Johnson , 529 F.3d at 200.

IV. Sequential Evaluation Process

To receive disability or supplemental security benefits, a 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); 42 U.S.C. § 1382c(a)(3)(A). The Act requires that a claimant for disability benefits 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).

The Commissioner uses a five-step evaluation process to determine if a person is eligible for disability benefits. See 20 C.F.R. § 404.1520; 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 does not proceed. See 20 C.F.R. § 404.1520. The Commissioner must sequentially determine: (1) whether the claimant is engaged in substantial gainful activity; (2) whether the claimant has a severe impairment; (3) whether the claimant's impairment meets or equals a listed impairment from 20 C.F.R. Part 404, Subpart P, Appendix 1; (4) whether the claimant's impairment prevents the claimant from doing past relevant work; and (5) whether the claimant's impairment prevents the claimant from doing any other work. See 20 C.F.R. §§ 404.1520, 416.920. Before moving on to step four in this process, the ALJ must also determine Plaintiff's residual functional capacity ("RFC"). 20 C.F.R. §§ 404.1520(e), 416.920(e).

The disability determination involves shifting burdens of proof. The claimant bears the burden of proof at steps one through four. If the claimant satisfies this burden, then the Commissioner must show at step five 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 , 994 F.2d 1058, 1064 (3d Cir. 1993). The ultimate burden of proving disability within the meaning of the Act lies with the plaintiff. See 42 U.S.C. § 423(d)(5)(A); 20 C.F.R. § 416.912(a).

V. Discussion

A. Physical Impairments

i. Medical Records

The ALJ found at step four that Plaintiff could perform his past relevant work as a data entry clerk. (Tr. 26-31). Plaintiff was born on July 29, 1976 and was classified by the regulations as a younger individual through the date of the ALJ decision. 20 C.F.R. § 404.1563. (Tr. 174). He has at least a high school education and past relevant work as a retail sales clerk, customer service representative, and data entry clerk. (Tr. 44, 62). Plaintiff's primary physical impairment is back pain caused by obesity.

Plaintiff reported that he had been overweight since he was around the age of eighteen, in 1994. (Tr. 469). On October 30, 2009, Plaintiff was evaluated for the first time by Dr. Barbara Haeckler, M.D. (Tr. 491). He was "stunned to find he weighed over 400 pounds" and was anxious to get started losing weight. (Tr. 491). He reported that he had "some" back pain but wanted to avoid medications if possible. (Tr. 491).

On November 18, 2009, Plaintiff was evaluated by Dr. Haeckler. (Tr. 489). He was morbidly obese and reported that he had very severe back pain. (Tr. 489). He expressed difficulty finding a job in accounting because he was afraid that he had lost his skills and was limited because of his size and back pain. (Tr. 489). He reported that he could not stand for long periods of time. (Tr. 489). Dr. Haeckler wrote that she "agreed to a 6 month period of temporary disability to help him with weight loss, get him to start exercising on a regular basis, and reduce his back pain." (Tr. 489). She completed an Employability Assessment Form the same day. (Tr. 505). She opined that Plaintiff was temporarily disabled as a result of morbid obesity, elevated blood pressure, and back pain. (Tr. 505). She explained that he was unable to do physical labor and unable to stand for long periods of time as a result of these impairments. (Tr. 505). She based this opinion on a physical examination, a review of medical records, and his clinical history. (Tr. 505). She opined that his disability would last for six months, from November 18, 2009 to May 18, 2010. (Tr. 505).

On December 10, 2009, Plaintiff followed-up with Dr. Haeckler. (Tr. 486). She wrote:

Issues of disability: I told him again that I do not feel that he was disabled in any kind of long-term way. He had been given disability for a six-month period to get his blood pressure under control, start working on his morbid obesity, which should help reduce his back pain. I told him I wanted him to be doing back exercises on a regular basis, take his medication for his blood pressure, and also start to exercise. I feel that he actually is employable. He's unable to do physical labor or stand for long periods of time at this point. I told him he should start looking for a job in the areas that he's been trained in, which is accounting.

(Tr. 486).

On January 19, 2010 and February 26, 2010, Plaintiff followed-up with Dr. Haeckler for his blood pressure. (Tr. 484-85). He had lost weight. (Tr. 484). (Tr. 484). On June 11, 2010 Plaintiff transferred care to Dr. James Owens. Dr. Owens noted that Plaintiff "has had some problems with back pain" and that Dr. Haeckler had wrote out a disability form. (Tr. 482).

On July 22, 2010, Plaintiff was evaluated by Dr. Bradley Jahn, a chiropractor. (Tr. 408, 550). X-rays of Plaintiff's lumbar and thoracic spine revealed no abnormalities. (Tr. 412). MRIs of Plaintiff's lumbar and thoracic spine indicated only mild degenerative change without disk space narrowing. (Tr. 413). However, he had multiple objective findings on exam, including decreased range of motion, slow reflexes, trigger points, tenderness, hyperesthesia, and positive Minor's, Kemp's, ValSalva's, Bechterew's, Yeoman's, and Ely's tests. (Tr. 408). Dr. Jahn noted that Plaintiff's "evaluation reveals musculoskeletal and/or neurological deficits resulting in diminished functional capacity and activities of daily living. His impaired activities of daily living include sleeping, getting dressed, prolonged sitting, prolonged standing, going up/down stairs, reaching, lifting, housework, bathing/showering, unsteady while walking, and he is currently unable to work." (Tr. 408).

On July 30, 2010, Plaintiff followed-up with Dr. Owens for back pain. (Tr. 478). He indicated that his pain occurs "intermittently" with no radiation and was aggravated by bending, standing and doing dishes. (Tr. 478). Plaintiff had tenderness and muscle spasm. (Tr. 479). He referred Plaintiff to physical therapy. (Tr. 480).

On August 2, 2010, Plaintiff had a physical therapy evaluation. (Tr. 410, 531-32). He had full range of motion, except for reduced flexion in his lumbar spine. (Tr. 410). His posture was had "increased thoracic kyphosis and lumbar lordosis." (Tr. 410). He had pain on palpation with only mild tightness and no muscle spasms. (Tr. 410).

On August 26, 2010, Plaintiff followed-up with Dr. Owens. (Tr. 477). He described his back pain as an "ache" and reported that it is exacerbated by sitting, standing and doing dishes. (Tr. 475). He had tenderness and "minimal discomfort" but no muscle spasm. (Tr. 476).

On September 23, 2010, Plaintiff was discharged from physical therapy. (Tr. 535). He had received eight visits. (Tr. 535). Plaintiff "reported that he was able to perform his basic daily activities without difficulty/pain. However, he was unable to ...


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